K. S. Gupta ( 1 ) THIS appeal by Hem Raj and two others has been preferred against the judgment dated 24. 11. 92 and the order dated 26. 11,92 passed by an Additional, Sessions judge whereby all the three appellants have been convicted under Section 302 and 323 read with Section 34 Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 500. 00 each under Section 302/34 Indian Penal Code and to three months" rigorous imprisonment under Section 323/34 Indian Penal Code each. In default of payment of fine. each of them was to further undergo rigorous imprisonment for six months. ( 2 ) CASE of the prosecution, in brief, is that on 7. 11. 89 on receipt of copy of DD No. 27-A. AS1 Mange Ram Public Witness-26 reached B-4 Block. Sultanpuri. where Puran Public Witness-14 and Radha met him in injured condition and both of them w ere sent to hospital by him. On receipt of copy of yet another DD No. 28-A. Public Witness-26 reached RML hospital and collected MLC No. 108685/89 relating to Daulat Ram who was declared unfit for making statement. Lal Chand Public Witness-9. who claimed himself to be an eye-witness of the occurence, met Public Witness-26 in the hospital and he recorded his statement exhibit Public Witness-9/a to the effect that that day at about 8,00 P. M. after he reached the house from the place of his work. he saw Radha, Chunni Lal and Hem Raj. hurling abuses to Public Witness-8 Smt. Heeri. wife of Daulal Ram and Daulal Ram asked all three of them not to hurl abuses. In the meantime, his father Puran Public Witness-14 came there and he too objected to the hurling of the abuses. Thereupon, Chunni Lal exhorted his mother and brother saying "aaj inkole lo". Thereafter, Radha caught hold of Daulat Ram. Chunni Lal gave a lathi blow on the head of Puran while Hem Raj assaulted with the handle of a hand-pump on the head ofdaulat Ram. As a result of the assaults. Puran started bleeding from his head while Daulal Ram fell on the ground after having become unconscious. On seeing the serious condition of his uncle Daulat Ram he took him to RML hospital. As a result of the assaults. Puran started bleeding from his head while Daulal Ram fell on the ground after having become unconscious. On seeing the serious condition of his uncle Daulat Ram he took him to RML hospital. On the basis of this statement, case under Section 308/34 Indian Penal Code was registered against Hem Raj. Chunni Lal and Radha accused. During investigation Public Witness 26 lifted blood, clothes and handle of the handpump from the place of. occurrence besides arresting accused Radha. Daulat Ram expired on 8. 11. 89 in the hospital. Inquest proceedings were conducted by S I Raghunandan Singh. Public Witness 17 and he also sent the body of Daulal Ram for postmortem to Civil Hospital. On 1. 11. 90 accused Chhuni Lal and Hem Raj were arrested by ASI Bhirn Singh of the Special Staff. Public Witness 6. Injuries suffered by Puran Public Witness, 14 have been opined to be simple, caused by a blunt object by the concerned doctor. Offence commuted by the accused after the expiry of Daulat Ram was converted u/s 302/308 Indian Penal Code and after completing the investigation challan was. filed against them. ( 3 ) CONTENTION advanced on behalf of the accused-appellant w as that Chunni Lal and Radha cannot be held vicariously liable with the aid of Section 34 Indian Penal Code along-with Hem Raj for committing the murder of Daulat Ram and further that it being a case of sudden fight in the heat of passion and without pre- meditation is covered by Exception-4 to Section 300 Indian Penal Code and is punishable under Section 304 instead of Section 302 Indian Penal Code. Strong reliance w as placed on the authorities of Hari Ram vs. State of Haryana (1983)1 SCC-193 and Dalla and others vs. State of Rajasthan (1987) Suppl. SCC 179. Reference to the statements of Smt. Heeri. Public Witness 8. Lal Chand. Public Witness 9 and Puran. Public Witness 14. the alleged eye witnesses have become necessary for appreciating the submission referred to above. Public Witness 8 has deposed that the house of the accused is situated just at the back other house and the roofs of both the houses adjoin each other. Roof other house is of asbestos sheets and because of throwing of malba" etc. by the accused asbestos sheets of the roof other house had broken. Public Witness 8 has deposed that the house of the accused is situated just at the back other house and the roofs of both the houses adjoin each other. Roof other house is of asbestos sheets and because of throwing of malba" etc. by the accused asbestos sheets of the roof other house had broken. About two-and-a half year back w hen she told Radha. accused not to throw "malba etc. on the root she started abusing her. At about 8. 00 PM Hem Raj accused armed with the handle of hand pump and Chunni Lal. armed w ilh a lathi also came there. Daulat Ram. her husband, Puran,. brother other husband and his son Lal Chand too reached there. When her husband asked Radha, accused not to hurl abuses, she caught hold of him. Chhuni Lal exhorted saying Aaj inko lelo . Thereafter Chunni Lat gave a lathi blow on the head of Puranwhile Hem Raj inflicted a blow with the handle of the handpump on the head of her husband, as a result whereof the latter started bleeding from the head profousely. Accused Chunni Lal ran aw ay along with lathi while Hem Raj also fled leaving behind the handle of the hand pump on the spot. Lal Chand removed her husband to RML hospital. EX. PI is the handle of the handpump used by accused Hem Raj for assaulting her husband. It w as seized by the police from the spot in her presence after about two hours of the occurrence. In cross-examination she has stated that the trouble on throwing the malba etc, started about 6. 00 P. M. and there had been exchange of hot words between her and Radha accused for about an hour. She had pleaded ignorance that any person by the name Radhey w as living with the accused and used to ply three wheeler scooter. She has emphatically denied the suggestion that Radhey gave a blow w ith the handle of the hand pump on the head other husband and Chunni Lal and Hem Raj accused w ere not present at the spot at the time the occurrence took place. She has emphatically denied the suggestion that Radhey gave a blow w ith the handle of the hand pump on the head other husband and Chunni Lal and Hem Raj accused w ere not present at the spot at the time the occurrence took place. In their depositions Lal Chand Public Witness-9 and Puran Public Witness-14 have fully corroborated the testimony of Public Witness-8 on the points of hurling abuses by Radha accused, exhortation held out by Ghunni Lal accused, catching hold of Daulat Ram deceased by Radha and assault by Hem Raj and Chunni Lal on the deceased and Public Witness-14 respectively with the w eapons they w ere armed w ith. How ever, according to both of them, Radha accused caught hold of the deceased before exhortation was held out by accused Chunni Lal. ( 4 ) BEFORE proceeding to analyse the said evidence, let us have a look on the plea raised by the accused in defence. From the line of cross-examination conducted with Public Witnesss- 8 ,9 and 14 and also the statements made under Section 313 Cr. P. C. it may be noticed that according to them neither Chunni Lal nor Hem Raj accused was present in Delhi at the time thealleged occurence took place and injury on the person of deceased was inflicted by Radhey ,driver employed with them. Radhey has been examined as DW-2. In the authority of Dhananjoy Chatterjee @, Dhannu vs. State of West Bengal J. T. 1944 (Vol. 1) SC 33 law on the proof of alibi was enunciated thus by tile Apex Court:- "though it is not necessary for an accused to render explanation to prove his innocence and even if he renders a false explanation, it cannot be used to support the prosecution case against him and that the entire case must be proved by the prosecution itself but it is well-settled that a plea of alibi, if raised, by an accused is required to be proved by him by cogent and satisfactory evidence so as to completely exclude the possibility of the presence of the accused at the place of occurrence at the relevant time. The belated and vague plea of alibi of which we find no whisper during the cross- examination of any of the prosecution witnesses and which has not been sought to be established by leading any evidence either is only and after thought and a plea of despair" ( 5 ) IN support of the plea of alibi raised by accused Chunni Lal and Hem Raj, the accused have not led any evidence whatsoever. In the absence of that evidence both these accused must be held to have failed to prove that neither of them w as present at the time the alleged occurence took place. Further, Radhey DW- 2, towards the end of the examination-in-chief has stated that he had not given any blow with anything to anyone meaning thereby that it is denied by him that he inflicted a blow on the head of the deceased with handle of handpump Exhibit P-1 as is the defence taken up by the accused. ( 6 ) TO fasten joint criminal liability with the help of Section 34 Indian Penal Code of accused Radha and Chunni Lal for committing the murder ofdaulat Ram, the learned Additional P. P. appearing for the State has invited our attention to the fact that it w as only after exhortation w as held out by accused Chunni Lal that Radha caught hold of the deceased while remaining two accused opened assault with the weapons they were aremed with-on the deceased and Public Witness-14. Particularly from the deposition of Public Witness-8, it may be noticed that the trouble on throwing of malba etc. in between Public Witness-8 and Radha accused started at about 6. 00 P. M. and accused Chunni Lal and Hem Raj reached the spot thereafter around 8. 00 P. M. Obviously, accused Radha had no meeting of mind with the remaining two accused to commit the murder of the deceased before they armed at the spot. In the circumstances of the case, sharing of common intention in between accused Chunni Lal and Hem Raj to commit the offence complained of before they reached the spot is further ruled out. As discussed earlier, statements of Public Witness-8, on the one hand and Public Witness 9 and 14, on the other hand are inconsistent as regards the point of time accused Radha caught hold of the deceased. As discussed earlier, statements of Public Witness-8, on the one hand and Public Witness 9 and 14, on the other hand are inconsistent as regards the point of time accused Radha caught hold of the deceased. In our view mere exhortation by Chunni Lal accused aaj inko lelo" does not unequivocally go to show that Chunni Lal and Radha accused shared common intention with Hem Raj accused to intentionally commit the murder of Daulat Ram. That being so Radha and Chunni Lal accused cannot be held vicariously liable with the aid of Section 300 Indian Penal Code for the act of accused Hem Raj for giving a fatal blow w ith the handle of the hand pump Exhibit P-1 to Daulat Ram. Chunni Lal accused too is only individually guilty of causing simple injury with the lathi to Puran Public Witness-14. ( 7 ) COMING to the second limb of argument referred to above, culpable homicide is hot murder when the accused causes death by doing an act with the intention of causing death or causing such injury as is likely to cause death or with the know ledge that he is likely by such act to cause death. If the accused intentionally causes injury which is sufficient in the ordinary course of nature to cause death, it attracts clause thirdly to Section 300 Indian Penal Code unless it is brought in any one of the exceptions. Material part of the deposition of Dr. Bharat Singh Public Witness-12 runs thus:- ( 8 ) "i found the following injuries on the body of the deceased : 1. Bluish ecchymosis around the right eve. 2. Abrasion just below die outer angle of the right eve. It was brown in colour, size l/2"x3/4". 3. Abrasion on the right side fore-head size 1"x3/4" brown in colour. 4. One stitched wound on the vertex of the skull in the occipital area placed obliquely size 2" long. There was swelling around the wound. ( 9 ) ON the internal examination of the body, I found the following:- THERE was diffuse haematoma in the scalp tissues round about injury No. 4 involving w hole of the occiptal and part of both parietal areas It w as dark red in colour. There was depressed fracture of occipital bone in an area of 3 1/2" x 2 1/2". There was depressed fracture of occipital bone in an area of 3 1/2" x 2 1/2". Fractured pieces of bones w ere dipping down in the brain substance. There w as loosening of sagital suture in which clotted blood was present. There was a fissured gaping fracture of frontal bone which was extending posteriorly upto the interior end of sagilal suture and interiorly upto right orbital margin. Meanings were torn in the occipital region below the depressed fracture. Brain was lacerated in the occipital area (3"x2" ). There was subdural haemorrhage on both sides of parieto - occipital region. . . . . . . . . . . All the injuries were ante mortem. Injury No. 4 was sufficient to cause death in ordinary course of nature and was caused by a heavy blunt object. Other injuries w ere possible by fall on the hard surface. " ( 10 ) ACCORDING to Public Witness-12 injury No. 4 was possible with the handle of the handpump exhibit P-1. ( 11 ) INJURY- No. 4 on the parson of the deceased which has been opined by Public Witness-12 to be sufficient in the ordinarycourse of nature to cause death of Daulat Ram was inflicted by accused Hem Raj with the handle of the hand pump exhibit P-1 as is proved from the statements of Public Witness- 8,9 and 14 and the same squarely fails in the category of clause thirdly to Section 300 Indian Penal Code. ( 12 ) POINT which now arises for consideration is whether exception-4 to Section 300 Indian Penal Code is attracted as urged on behalf of the accused. From the statements of Public Witness-8. 9 and 14, it is evident that at the time Radha accused w as hurling abuses to Public Witness-8, Daulat Ram also happened to reach there and he asked her not to abuse. He had no altercation with any of the acccused. ( 13 ) QUESTION of applicability of Exception-4 to Section 300 Indian Penal Code came to be considered by the Supreme Court in Narayanan Nair Raghvan Nair vs. The State of Travancore- Cochin AIR 1956 SC-99 and at was held thus in paras no. 11 and 12 of the report:- ( 14 ) "it was then argued that this was a case of sudden fight and so the case falls within the fourth Exception to Section 300 Indian Penal Code. 11 and 12 of the report:- ( 14 ) "it was then argued that this was a case of sudden fight and so the case falls within the fourth Exception to Section 300 Indian Penal Code. It is enough to say that the Exception requires that no undue advantage be taken of the other side. It is imposible to say that there is no undue advantage w hen a man stabs an unarmed person w ho makes no threatning gestures and merely asks the accused s opponent to slop fighting. Then also, the fight must be with the person who is killed. Here, the fight with between Velayudhan (Public Witness-1) and the appellant. The deceased had no hand in it. He did not even try to separate the assailants. All he did was to ask his son-in- law Velamidhan (Public Witness-1) to stop fighting and said that he would settle their dispute. It was argued that this indicated a threat at any rate, the appellant who was already angered by the slap. w as justified in taking the remark in that light and consequently that he w as going to be attacked by the deceased. But the evidence does not bear that out and the account given by the appellant has not been believed. He says that the deceased beat him and grappled with him and that they fdll down several times and that eventually the deceased seized him by the neck. All this is a question of fact on which there are concurrent findings. In our opinion, the Exception does not apply and the appellant was rightly convicted under Section 302 Indian Penal Code . ( 15 ) APPLYING the ratio of the said authority to the facts of the present case, the accused Hem Raj cannot claim the benefit of Exception-4 to Section 300 Indian Penal Code as the deceased had only told Radha accused not to hurl abuses to Public Witness-8 and had no fight with any of the accused and w as unarmed. Authority of Hari Ram (supra) is not attracted to the facts of this case inasmuch as in that case an altercation had ensued between Ran Singh, deceased, on the one hand, and appellant Hari Ram and others, on the other hand. Authority of Hari Ram (supra) is not attracted to the facts of this case inasmuch as in that case an altercation had ensued between Ran Singh, deceased, on the one hand, and appellant Hari Ram and others, on the other hand. Further, the order in the case of Daila and another as reported in 1987 (suppl.) SCC 179 does not disclose the full facts of the case and in the absence thereof no help can he sought by the accused from that authority. ( 16 ) ACCUSED Chunnilal is thus guilty of the offence punishable under Section 323 Indian Penal Code for having caused simple injuries to Puran Public Witness-14 while accused Hem Raj is guilty of the offence punishable under Section 302 Indian Penal Code for having intentionally committed the murder ofdaulat Ram. ( 17 ) IN the result, the appeal is partly accepted and Radha appellant who is on interim bail s acquitted of the charges under Section 302/324 read with Section 34 Indian Penal Code. Chunni Lal appellant too is acquitted of the charge under Section 302/34 Indian Penal Code. Conviction of Chunni Lal appellant are substituted under Section 323 Indian Penal Code while that of Hem Raj appellant under Section 302 Indian Penal Code. We are told that Chunni Lal appellant who was also awarded three months rigorous imprisonment under Section 323/34 Indian Penal Code is under detention for over four years. Therefore, he is ordered to be set at liberty forthwith if his detention is not required in any other case. Sentence for life imprisonment and fine of Rs. 500. 00 imposed on appellant Hem Raj by the trial court for intentionally committing the murder of Daulat Ram is maintained.