V. P. MATHUR, J. ( 1 ) THREE persons stood their trial for offences under section 302 read with section 34 of the Indian Penal Code. The third man who has been acquitted is Shiv Dutt father of Narendra Kumar alias Babboo and husband of Smt. Raj Rani. ( 2 ) THE incident giving rise to this trial conferred on -15-9-1977 at about 3. 30 P. M. in the area known as Harthala Railway Colony, within the police station-Civil Lines, Moradabad. Chandra Prakash who died in this case and Narendra Kumar who is the first informant (P. W. 5) were real brothers. They were running a General Merchandise Shop, which has been shown by digit no. 7 in the site-plan prepared by the Investigating Officer (Ext. Ka-9 ). There are a number of shops in a single line at that spot. By digit no. I the shop is shown being run by Shiv Dutt and his son Narendra Kumar alias Babboo-appellant. At this stage, it may be mentioned that Narendra Kumar alias Babboo-appellant was about 19 years of age and although the shop is owned by Shiv Dutt-his father. Since Shiv Dutt is in the railway employment, hence, Narendra Kumar alias Babboo runs this shop and works as a tea vendor. There is another shop of one Badri Prasad shown by digit 3 in the site-plan and it is a cycle shop. Badri Prasad has been examined as P. W. 4. Another man Bharat Bhushan (P. W. 6) is a betel seller and his shop is shown by digit 6 and adjoins the shop of informant towards its east. Narendra Kumar alias Babboo-appellant had purchased a tube of borolene for a sum of Rs. 5/- from the first informant Narendra Kumar about 11/2 months prior to this occurrence and the amount was not paid as it was purchased on credit. The evidence shows that the first informant had been making demands for the payment of the amount. About four or five times the demands were made and Narendra Kumar alias Babboo tried to ward off by making promises. Eventually he promised to make the payment on 11-9-77 when his father got his salary for the month. Even this promise was not kept. ( 3 ) AT about 3. About four or five times the demands were made and Narendra Kumar alias Babboo tried to ward off by making promises. Eventually he promised to make the payment on 11-9-77 when his father got his salary for the month. Even this promise was not kept. ( 3 ) AT about 3. 30 P. M. on 15-9-1977 the first informant Narendra Kumar came from his house to his own shop and from there proceeded towards the main market of Moradabad on his cycle with intention to make purchases of some articles for his shop. He passed from in front of the shop of appellant Narendra Kumar alias Babboo who was sitting there. The first informant thought it proper to obtain the amount of Rs. 5/- which could be used in making purchases from the market and with that intention he approached Babboo for the payment of Rs. 5/ -. This caused offence to Babboo who thought that it was a sort of affront. He bluntly refused to pay the amount and told the first informant to do whatever he could to realise the money. Shiv Dutt father of Babboo also arrived at the shop just then and when the first informant told him that his son owed him a paultry sum of Rs. 5/- Shiv Dutt also got angry and enquired from the informant as to why he had given the articles on credit. There was an exchange of hot words. The mother of Babboo namely Smt. Raj Rani also arrived on the spot. The first informant went off his mood and came back to his own shop where his younger brother Chandra Prakash aged about 22 years was sitting. There is some difference between the witnesses as to whether he could narrate the whole matter to Chandra Prakash. But what happened was that meanwhile Babbu went to his house, brought a lathi which was iron-shord and thus armed he came infront of the shop of the first informant. Smt. Raj Rani also similarly armed with an iron rod reached there. Shiv Dutt caught the first informant in his grip from behind. Smt. Raj Rani dealt him a blow on his leg and Chandra Prakash when he came down to save his brother, was given a blow with the iron shord stick by Babbu, as a result of which he sustained injuries on his head and fell down. Shiv Dutt caught the first informant in his grip from behind. Smt. Raj Rani dealt him a blow on his leg and Chandra Prakash when he came down to save his brother, was given a blow with the iron shord stick by Babbu, as a result of which he sustained injuries on his head and fell down. ( 4 ) THE occurrence was witnessed by Badri Prasad (P. W. 4), Bharat Bhushan Sharma (P. W. 6), Gyan Chand, Lal Singh and other shop keepers who were present at the spot. The victim was placed in a rickshaw and carried to his house where he was first examined by the Railway Doctor Sri Srivastava, who did not give any treatment and directed that he be taken in an ambulance to the District Hospital Moradabad. This was done and in the District Hospital Moradabad Dr. S. K. Sehgal (P. W. 3) at 4. 50 P. M. examined him for his injuries, on 15-9-1977. He found a contusion 6 cms x 4. 5 cms on the left-side of head 3 cms above and front of left ear. The general condition of Chandra Prakash was extremely poor. He was unconscious. He was gasping. He was kept under observation. In the opinion of the doctor the injury was fresh and had been caused by some blunt object. A detailed examination could not be made, as the condition of the patient was serious. An information to the police was given. Ext. Ka-4 is the injury report. The doctor has been examined as P. W. 3 and he says that these injuries could have been sustained at about 3. 30 P. M. the same day. The same doctor examined Narendra Kumar the first informant at about 4. 55 P. M. and found on his person a single lacerated wound 1. 5 cm x 1 cm x muscle deep on the front and middle of right leg. It was a fresh bleeding injury and had been caused by some blunt object X-ray was advised. ( 5 ) IT so appears that the same day at about 6. 30 P. M. Chandra Prakash succumbed to his injuries and died in the hospital, and the doctor sent an information to the Station Officer Kotwali, Moradabad, vide Exts. Ka-6 and Ka-7. Almost at the same time, the informant also reached the police station Civil Lines Moradabad at 7. 30 P. M. Chandra Prakash succumbed to his injuries and died in the hospital, and the doctor sent an information to the Station Officer Kotwali, Moradabad, vide Exts. Ka-6 and Ka-7. Almost at the same time, the informant also reached the police station Civil Lines Moradabad at 7. 15 P. M. and submitted the written report Ext. Ka-6 nominating all the accused in this case and detailing out the facts. The case was registered and investigation was started. ( 6 ) RAM Prasad Saxena (P. W. 9) Sub Inspector reached the hospital but on account of paucity of light, could not hold any inquest in the night. Meanwhile the Investigating Officer S. P. Sharma (P. W. 7) recorded the statements of Narendra Kumar first informant. Bharat Bhushan, Badri Prasad and others, made spot-inspection and prepared site plan Ext. Ka-9, and made a search for the accused persons. Shiv Dutt and his wife Smt. Raj Rani were arrested the same night by Ved Pal, Sub- Inspector. Narendra Kumar alias Babboo surrendered subsequently in Court. Mr. Ram Prasad Saxena (P. W. 9) Sub Inspector held inquest on the dead body on 16-9-1977. The memo is Ext. Ka 14 He also prepared the other documents. Autopsy was conducted on the dead body by P. W. 1 H. S. Ambwani on 16-9-77, at 7 P. M. The deceased was aged about 22 years and the probable time since death was about one day. Rigor mortis was present in both the extremities and the only ante mortem injury that was found was a contusion 3 X 2 on the left side skull in the temple region. ( 7 ) INTERNAL examination revealed fracture of the temporal bone on the left side which was comminuted and depressed. In the opinion of the doctor, the death was due to coma as a result of head injury which was sufficient in the ordinary cause of nature to cause the death. He also was of the opinion that this injury could have been caused by an iron shard stick. ( 8 ) ON behalf of the accused-persons a counter case was putforth. Narendra Kumar alias Babboo admitted that he owned a sum of Rs. 5/- and that demand was made on 15-9-77 at 3. He also was of the opinion that this injury could have been caused by an iron shard stick. ( 8 ) ON behalf of the accused-persons a counter case was putforth. Narendra Kumar alias Babboo admitted that he owned a sum of Rs. 5/- and that demand was made on 15-9-77 at 3. 30 P. M. at his shop and he offered to pay it late in the evening, but the first informant continued to press for the payment immediately and there was an exchange of hot words. Then Narendra Kumar and Chandra Prakash brought one Tabal and one lathi from the shop of Bhushan. Meanwhile Shiv Dutt and Smt. Raj Rani arrived and they tried to save the accused-appellant Babbu. Shiv Dutt caught hold of the first informant Chandra Prakash gave a blow of Tabal to Babbu which he saved on a lathi and when Chandra Prakash tried to give a second blow, Babbu warded it off by attacking Chandra Prakash with his lathi, as a result of which Chandra Prakash received the head injury. ( 9 ) IT may be mentioned here that the defence which has been put forth in reply to question no. 17 in the statement of this appellant, does not explain the injury of the first informant. In answer to question no. 17, Smt. Raj Rani gives a slightly different version. She says that Chandra Prakash and the first-informant arrived with tabal and lathi and tried to attack her son Babbu. Upon which Shiv Dutt caught hold of Narendra Kumar first informant, while Chandra Prakash gave a blow with tabal to Babbu, then Babbu wielded his danda. She also does not explain the injuries of the first informant. According to her, one blow with a tabal had already been given to Babbu. We, however, do not find any injury on the person of any of the appellants. ( 10 ) THE trial was held by the then Sessions Judge Moradabad Mr. N. N. Sharma. It was Sessions Trial no. 74 of 1978. The learned Judge came to the conclusion that there can be no inference of common intention from the conduct of the assailants. He, therefore, recorded the finding of not guilty against Shiv Dutt and acquitted him. So far as Smt. Raj Rani is concerned, it was held that she was guilty only under section-323. 74 of 1978. The learned Judge came to the conclusion that there can be no inference of common intention from the conduct of the assailants. He, therefore, recorded the finding of not guilty against Shiv Dutt and acquitted him. So far as Smt. Raj Rani is concerned, it was held that she was guilty only under section-323. I. P. C. Considering that she was a lady and also in view of the circumstances of the case, she was punished with a sentence of Rs. 100/- as fine. Narendra Kumar aliaf Babbu was however, held to be guilty under section 302. I. P. C. convicted accordingly and sentenced to imprisonment for life. ( 11 ) THE point arose whether Smt. Raj Rani who has been sentenced only to payment of a fine of Rs. 100/- and who could only file a revision against her conviction and sentence, could join in this appeal as co-appellant. The decision on the point is not very difficult. Section 374 of the Code of Criminal Procedure will clearly apply to this case. In Sub-section (2), the words against him or against any other person convicted at the same trial have been inserted to clarify that when an accused is convicted and sentenced to imprisonment by any court to more than seven years, appeal of all convicted co-accused also, at the same trial, irrespective of the sentences passed on them, shall lie to the High Court. ( 12 ) THIS being so, there is no defect in the joining of Smt. Raj Rani in this appeal with her son, although she has not been sentenced to any term of imprisonment, but she has to pay only a fine of Rs. 100/- and in default to undergo three months simple imprisonment. ( 13 ) THE fact that a sum of Rs. 5/- was due from Babbu alias Narendra Kumar appellant to first informant Narendra Kumar (P. W. 5) in this case is admitted. It is also conceded that demands were being made for payment of this amount and that on 15-9-1977 also at 3. 30 P. M. a demand was made, while appellant Babbu alias Narendra Kumar was sitting at his shop. It is also conceded that demands were being made for payment of this amount and that on 15-9-1977 also at 3. 30 P. M. a demand was made, while appellant Babbu alias Narendra Kumar was sitting at his shop. The first informant who has been examined in this case as P. W. 5 has given out the entire prosecution version in the matter and he finds complete corroboration from the testimony of P. W. 6 Bharat Bhushan and also from P. W. 4 Badri Prasad. During examination-in-chief Badri Prasad has completely supported the prosecution version of the matter. During cross-examination, however, it appears that he got confused and his statement can be read to mean that the entire occurrence took place in front of the shop of appellant Babbu. Even if that be true, it will make no difference in this case. No blood fell on the spot and nothing was recovered. Therefore, the dispute about the place of occurrence can of course be raised, but the perusal of the site-plan will show that between the shop no. I and shop no. 7 five shops intervene, which are just adjacent to each other and the whole distance is very little. So it will not be of any help to the defence, if it is established that the occurrence took place in front of the shop of accused-appellant Babbu and not in front of the shop of first informant. The question for determination would only be as to how the occurrence took place and in what manner the assault was made. It is established beyond doubt from the testimony of all the prosecution witnesses, inspite of lengthy and searching cross-examination with them, that neither Chandra Prakash nor Narendra Kumar-first informant were armed with any weapon. The whole of the defence story crediting Chandra Prakash with a tabal, at one time and with pharsa at another and Narendra Kumar first informant with lathi, has completely fallen down. There is nothing on the record to prove that these two persons were at all armed. On the contrary it is admitted case on the side of the defence that Babbu had used a lathi with the result that depressed fracture on the temporal bone of the deceased was caused and which resulted in his death. There is nothing on the record to prove that these two persons were at all armed. On the contrary it is admitted case on the side of the defence that Babbu had used a lathi with the result that depressed fracture on the temporal bone of the deceased was caused and which resulted in his death. There is no explanation of the injury received by Narendra Kumar first informant even in the defence version putforth by the two appellants in their statements, and no defence witness has been examined at all. ( 14 ) IT cannot be said to be a case in which there has been an exercise of the right of private defence. The three witnesses of the prosecution emphatically repudiate the suggestion that there was at all any circumstance which could give rise to a reasonable ground to Babbu on the basis of which he could apprehend that either death or grievous hurt was to be caused to him. Had Chandra Prakash been armed with a Tabal or Pharsa and Narendra Kumar with a lathi, Shiv Dutt and Smt. Raj Rani would not have gone without receiving any single injury and it is also extremely inconceivable that Narendra Kumar alias Babbu would also not have received a single injury specially when these two persons came determined and armed with weapons. ( 15 ) WE are thus in agreement with the learned Sessions Judge that the assault was made by Narendrakumar alias Babbu upon Chandra Prakash with an iron-shord lathi and by Smt. Raj Rani on Narendra Kumar the first informant with an iron rod. Therefore, the charge under Section 323, I. P. C. is definitely and directly proved against Smt. Raj Rani. The learned Sessions Judge dealt with her rather leniently in awarding the sentence of fine of Rs. 100/- only to her, and in making default punishable with three months simple imprisonment. Smt. Raj Ranis appeal will therefore, fail and will have to be dismissed. ( 16 ) SO far as Narendra Kumar alias Babbu is concerned, we are not in agreement with the learned Sessions Judge that the case would be covered under Section 302, I. P. C. Almost similar circumstances were available in the case of Kulwant Rai v. State of Punjab, which came up before the Supreme Court. It was a case in which there was a short quarrel followed by assault. It was a case in which there was a short quarrel followed by assault. The accused gave to the deceased one blow with a dagger which landed in epigastrium area and the victim succumbed to his injuries. It was found that there was no prior enmity and hence it was something like hit and run and it was held that in such a case Part-Ill of Section 300 would not be attracted, because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to be fatal. On the contrary it appeared that the accused inflicted an injury which he knew to be likely to cause death; The case was held to be covered by Section 304 Part-Il of the Indian Penal Code. In the case of Han Ram v. State of Haryana, also the injury had been caused by a single blow dealt in heat of altercation. Intention to kill was not apparent and the offence was held to be one under Section 304, I. P. C. and not under Section 302, I. P. C. There is yet another case of Jagtar Singh V. State of Punjab,3 in which there was a sudden quarrel on the spur of the moment arising out of trivial reason on chance meeting of the parties. There was no premeditation or malice. The accused was a young man who had caused single blow by the knife on the chest which had pierced deep and it damaged the heart and the victim had died. It was held that intention to cause death or that particular injury could not be imputed to the accused, who could not be credited with the knowledge that he was likely to cause an injury which was likely to cause the death. The offence was held to have been committed under Section 304 Part-Il and not Paras 1 and 2 of Section 300. ( 17 ) IN the present case also, there was no previous enmity between Chandra Prakash or for the matter between Narendra Kumar first informant and Narendra Kumar alias Babbu-accusedappellant-Persistent demand of the paultry amount of Rs. 5/- was being made by the first informant and that particular day also the some demand was made, which suddenly infuriated the accused-appellant. There was an exchange of hot words between them. 5/- was being made by the first informant and that particular day also the some demand was made, which suddenly infuriated the accused-appellant. There was an exchange of hot words between them. As a result of all this, the appellant with the help of iron shord lathi assaulted the deceased and caused him a single blow. The evidence shows that Smt. Raj Rani at that time was armed with an iron rod and on the side of the prosecution, there were no weapons at all. Under these circumstances persistent blows could have been made upon the deceased and also upon the first-informant, if the intention was to cause death. There is no evidence of any malice or premeditation. Everything took place at the spot of the moment as a result of a sudden quarrel. The intention to cause that particular injury to Chandra Prakash cannot be imputed to Narendra Kumar alias Babbu, and it will be a case to be covered under Section 304 Part-Il of the Indian Penal Code and sentence of five years rigorous imprisonment will serve the ends of justice. ( 18 ) THE result is that Smt. Raj Ranis conviction under section 323, I. P. C. and the sentence of fine of Rs. 100/- and in default, three months simple imprisonment is upheld. The record of the case shall go back to the Court below for realisation of the amount of fine and for further action in this respect. ( 19 ) THE appeal of Narendra Kumar alias Babbu is allowed in part. His conviction under Section 302, I. P. C. is altered to one under Section 304 Part-Il, I. P. C. and the sentence of imprisonment for life is changed to sentence of five years rigorous imprisonment. He is on bail. He shall surrender and be taken into custody forthwith to serve out his sentence. His bail bonds and sureties shall be cancelled. .