JUDGMENT A.N. Jindal, J.-Three accused-appellants namely Dharambir, Ram Singh and Krishan Kumar (hereinafter referred to as ‘the accused’) were tried and convicted by the learned Additional Sessions Judge, Hisar, vide its judgment dated 6/9.10.1997, for the murder of Ranjit Singh and also causing injuries to Santra, Rattan Singh and Shamsher Singh, and were sentenced as under :- --------------------------------------------------------------------------------------------------------------------------- Dharambir U/s 302 IPC : To undergo rigorous imprisonment for life and to pay fine of Rs.3000/-. In default of payment of fine to further undergo rigorous imprisonment for two years. --------------------------------------------------------------------------------------------------------------------------- U/s 325/34 IPC : To undergo rigorous imprisonment for three years and to pay fine of Rs.2000/-. In default of payment of fine to further undergo rigorous imprisonment for one year. --------------------------------------------------------------------------------------------------------------------------- Ram Singh and Krishan U/s 325/34 IPC : To undergo rigorous imprisonment for three years and to pay fine of Rs.2000/- each. In default of payment of fine to further undergo rigorous imprisonment for six months each. --------------------------------------------------------------------------------------------------------------------------- U/s 323/34 IPC : To undergo rigorous imprisonment for one year each. --------------------------------------------------------------------------------------------------------------------------- However, all the substantive sentences were ordered to run concurrently. 2. The parties are related to each other inter-se. Teja Singh had three sons namely Harphool Singh, Lal Singh and Ram Singh. Rattan Singh-complainant (PW6) and his brother Ranjit Singh (since deceased) were sons of Harphool Singh. Ram Singh accused-appellant son of Teja Singh is the cousin of Ranjit Singh. Krishan Kumar accused being the son of Lal Singh is also the first cousin of Ranjit Singh (deceased). Teja Singh owned 19 acres of land which was situated in two different fields. One consisting of 14 killas known as Buriawala field and other 5 killas known as Kherawala field. Partition proceedings were going on between the parties. Complainant Rattan Singh was in possession of one killa of land out of field known as Buriawala field. The occurrence consists of two sequences which are reproduced as under :- 1. On 28.3.1994, at about 12 noon, Rattan Singh complainant had gone to harvest mustered crop with his bullock cart. When he was passing through the fields of Dharambir accused, then he protested to the same and abused him. Dharambir accused also inflicted injuries on the person of Rattan Singh with Khunta on his elbow joint, wrist of his right hand and on the left shoulder. When he was passing through the fields of Dharambir accused, then he protested to the same and abused him. Dharambir accused also inflicted injuries on the person of Rattan Singh with Khunta on his elbow joint, wrist of his right hand and on the left shoulder. The complainant Rattan Singh also inflicted Khunta blow on the person of Dharambir in the right of self-defence and both of them grappled. Dharambir accused also gave teeth bite on the thigh of the complainant. On the intervention of Chander son of Chandgi, the complainant was saved and both Rattan Singh complainant and Dharambir accused went back to their respective houses. 2. Houses of complainant and Ranjit Singh are located adjacent to each other. On that very day i.e. 28.3.1994, at about 10.00 PM, Dharambir and Ram Singh accused armed with Jellies and Krishan Kumar accused armed with lathi, started abusing Ranjit Singh brother of the complainant. Ram Singh accused caught hold of Ranjit Singh and Dharambir accused inflicted Jelly blow from its blunt side on the head of Ranjit Singh. Consequently, Ranjit Singh fell down and Sher Singh nephew and Santra wife of the complainant came at his rescue. Accused Ram Singh inflicted jelly blow on the head and left hand of Santra, while accused Krishan Kumar inflicted lathi blow on the right pinna and right hand of Shamsher. The occurrence attracted Gurdial Singh and Mange Ram. At this, the accused fled away from the spot with their respective weapons. 3. It is further stated by the complainant in his statement Ex.PF recorded before SI Bhim Singh, on 28.3.1994 at about 5.30 PM that the complainant party also inflicted injuries to the accused in their self-defence. The injured were shifted to the hospital in a three wheeler. Ranjit Singh succumbed to the injuries before he arrived at the hospital. On the basis of the aforesaid statement recorded by SI Bhim Singh, FIR Ex.PF/1 was registered at Police Station Sadar, Hisar on the same day at about 6.15 PM. The special report reached the Illaqa Magistrate on the same day at about 8.20 PM. Ranjit Singh succumbed to the injuries before he arrived at the hospital. On the basis of the aforesaid statement recorded by SI Bhim Singh, FIR Ex.PF/1 was registered at Police Station Sadar, Hisar on the same day at about 6.15 PM. The special report reached the Illaqa Magistrate on the same day at about 8.20 PM. SI Bhim Singh proceeded to the hospital; prepared the inquest report Ex.PH/1; sent the dead body for postmortem examination; inspected the spot; prepared rough site plan Ex.PDD; and took into possession pair of shoes Ex.P5 and Ex.P6, parna Ex.P7, clothes of Shamsher Ex.P8 and Ex.P9 and that of Santra Ex.P10 and Ex.P11 vide memo Ex.PV and Ex.PX. On 30.3.1994, he arrested Ram Singh accused and on 31.3.1994 he got recovered jelly Ex.P12 in pursuance of his statement Ex.PY under Section 27 of Evidence Act. Accused Krishan Kumar and Dharambir were arrested on 5.4.1994 and weapons of offence were also got recovered from them. On completion of the investigation, challan against the accused was presented in the Court. 4. A formal charge under Sections 302/323 read with Section 34 IPC was framed against all the accused and charge under Section 325 IPC was framed against the accused Dharambir separately, to which they pleaded not guilty and claimed trial. 5. When examined under Section 313 Cr.P.C. the accused admitted that Teja Singh was having 19 acres of land consisting of 2 fields: one comprising of 14 acres and the other comprising of 5 acres. Teja Singh had partitioned this land amongst his three sons by way of family settlement. However, they denied all other allegations and pleaded their false implication in this case. Accused Krishan Kumar further explained as under :- “On the day of occurrence, Rattan Singh had an altercation with Dharambir and gave him injuries. He and Dharambir left their house for going to the bus sand of village Dabra to take conveyance for going to Hisar for medical treatment and lodging the report. When they were proceeding in the main street and reached near the bus stand, Ranjit Singh and his family members attacked them. He was given injuries by Ranjit Singh and so was Dharambir and in order to save themselves they inflicted injuries to Ranjit Singh and his family members. The villagers at the bus stand also threw brick bats hitting the injured Ranjit Singh and others. He was given injuries by Ranjit Singh and so was Dharambir and in order to save themselves they inflicted injuries to Ranjit Singh and his family members. The villagers at the bus stand also threw brick bats hitting the injured Ranjit Singh and others. Rattan Singh was not present at the spot. He and Dharambir reached the hospital and were admitted there. The police did not record their version and implicated them falsely in this case. The other two accused also took the identical pleas. 6. On scrutiny of evidence, the trial Court convicted accused Dharambir under Section 302 read with Section 34 IPC and the remaining accused under Section 325/323 read with Section 34 IPC, and sentenced them accordingly. Hence this appeal. 7. We have heard Mr. Gorakh Nath, learned counsel for the appellants, Ms. Ritu Punj, learned Deputy Advocate General, Haryana and perused the records of this case with their able assistance. 8. The factum of relationship between the parties is not disputed in this case. It is also not disputed that partition proceedings were pending between three sons of Teja Singh namely Harphool Singh, Ram Singh and Lal Singh. The factum of family partition is in dispute. 9. The occurrence is divided into two parts. Rattan Singh complainant being the son of Harphool Singh was allotted 6 killas of land, therefore, he must be allotted 5 killas of land at Kherawala field and one killa out of 14 killas land situated at Buriawala field, where the occurrence took place. Nevertheless, it has transpired from the testimony of Rattan Singh (PW6) Shamsher Singh (PW7) and Santra (PW9), all three injuredeye witnesses, that the case consists of two sequences which occurred on the same day i.e. on 28.4.1993. Rattan Singh complainant (PW6) has consistently stated that in the first occurrence when he had been going with his bullock cart for harvesting mustered crop, then Dharambir accused protested and abused him. He also caused him injuries. Similarly, the complainant also caused injuries to Dharambir accused. While delineating over second occurrence, he stated that at about 10.00 PM on the same day, the accused Dharambir and Ram Singh, both armed with jellies and Krishan Kumar accused armed with lathi came out and started abusing them. He also caused him injuries. Similarly, the complainant also caused injuries to Dharambir accused. While delineating over second occurrence, he stated that at about 10.00 PM on the same day, the accused Dharambir and Ram Singh, both armed with jellies and Krishan Kumar accused armed with lathi came out and started abusing them. When Ranjit Singh tried to pacify the matter, the accused Ram Singh caught hold of Ranjit Singh, whereas accused Dharambir inflicted 2-3 jelly blows lathiwise on his head. On receipt of the injuries, he fell down. Shamsher Singh and Santra when tried to intervene, Ram Singh accused inflicted jelly blows on the left hand and head of Santra. Accused Krishan Kumar inflicted lathi blow on the right pinna and right hand of Shamsher Singh. Both the injured witnesses namely Shamsher Singh (PW7) and Santra (PW9) have fully corroborated the testimony of Rattan Singh complainant (PW6) on all material particulars. Their testimonies stand corroborated by the medical evidence coming from the mouth of Dr. Arun Kumar Gupta (PW4) who has categorically stated that on 29.3.1994 he conducted postmortem examination on the dead body of Ranjit Singh and found the following injuries on his person :- “1. Lacerated wound 4” x 1" on the parietal-occipital region of skull approximately in middle line. Clotted blood around the wound. Brain matter was coming out of wound. 2. Lacerated wound 2"x1" on the right parietal region of skull obliquely lying about 10 cms above the upper border of right pinna. Clotted blood was present. Brain matter was coming out of wound. 3. Lacerated wound 2.5" x 1" on the left parietal temporal region of skull obliquely lying about 1" lateral to wound No.1.” 10. Despite the scorching cross examination over the witness, nothing fruitful could be elicited by the learned defence counsel which may come at the rescue of the accused. It will be pertinent to mention here that the accused has also not denied the occurrence but they have submitted that when they were going to Hisar for medical treatment and lodging report, and when they reached near the bus stand, then they were attacked by Ranjit Singh (deceased) and his family members, in response to which Dharambir accused in order to save himself inflicted injuries to Ranjit Singh and his family members. Some villagers also threw brick bats upon Ranjit Singh (deceased) but this plea stands unsupported by any evidence. Some villagers also threw brick bats upon Ranjit Singh (deceased) but this plea stands unsupported by any evidence. The plea of right of private defence also could not be believed for the reason that there are only superficial injuries on the person of accused. Dr. B.L. Bagari (PW5), when examined Dharambir accused, found the following injuries on his person :- “1. An abrasion 1 cm on the mid of left parietal region which was 2 cms near the mid line. Fresh bleeding was present and was painful. X-ray skull was advised and referred to surgeon for expert opinion. 2. There were two abrasions 2 x 2 and 3 cms x 2 cms surrounded by a reddish bruise 8 x 6 cms on the posterior aspect of right shoulder extending to the lateral and upper aspect of right scapula. There were multiple teeth marks and was painful. X-ray right shoulder including lateral and upper part of right scapula and referred to orthopedic surgeon for expert opinion. 3. Reddish bruise 10 cms x 3 cms on the level of left upper board of scapula which was painful. 4. Abrasions 2 x ¼ cms on the mid and posterior aspect of left forearm which was painful.” 11. He also examined Krishan Kumar accused and found the following injuries on his person :- “1. A lacerated wound 5 x ¼ cms was present at the level of parietal occipital region placed transversely. Fresh bleeding was coming out and was painful. X-ray skull was advised and was referred to expert opinion. 2. He was complaining of pain on the dorsal aspect of left thumb. There was no evidence of fresh injury. X-ray left thumb was advised. 3. He was also complaining of looseness of right first tooth. He was referred to dental surgeon for expert opinion.” 12. According to him, all the injuries were found simple in nature. No bony injury was found by Dr. Pawan Jain (PW1) who radio-logically examined their injuries. As regards the injuries to Dharambir accused, it has come in evidence that the injuries were caused to him during earlier occurrence by Rattan Singh which has been duly explained in the FIR. It has also come in evidence that no injury was caused to Dharambir accused at the spot, at the time of second occurrence. Three injuries found on the person of Krishan Kumar accused also stand duly explained. It has also come in evidence that no injury was caused to Dharambir accused at the spot, at the time of second occurrence. Three injuries found on the person of Krishan Kumar accused also stand duly explained. Rattan Singh complainant (PW6) has categorically stated about the infliction of injuries to Krishan Kumar accused. In any case, mere superficial or simple injuries caused to the accused were not required to be explained by the prosecution. 13. As regards the plea of private defence, it may further be observed that there are four injured from the side of complainant party, whereas there is only one injured who suffered injuries at the time of occurrence from the side of accused. The number and nature of injuries as suffered by the complainant party are higher and more serious respectively than those suffered by the accused. The accused party suffered only simple injuries, to the contrary the complainant party suffered grievous injuries and part chosen by the accused to cause injuries to the complainant party were vital. The circumstances speaks to the volumes that the accused party having developed grudge of the injuries caused by Rattan Singh complainant to Dharambir accused; came armed with deadly weapons; abused Ranjit Singh (deceased), their neighbour and when he came out, attacked him, caused fatal injuries on his head. Whosoever came forward at his rescue, was inflicted simple as well as grievous injuries. As such, the plea of private defence, in the given circumstances of the case, is not available to the accused. 14. As regards the argument that in the FIR, it is mentioned that Dharambir inflicted jelly blow lathiwise on the head of Ranjit Singh (deceased), but as per medical evidence three injuries were found on the head of Ranjit Singh (deceased). Subsequently, in order to bring their testimonies in conformity with the medical evidence, Rattan Singh complainant (PW6), Shamsher Singh (PW7) and Santra (PW9) came forward with improved version that Dharambir accused had inflicted 2-3 jelly blows lathiwise on the head of Ranjit Singh (deceased). 15. Having pondered over the aforesaid argument, we do not find any merit in the aforesaid contention. On cursory look of the statement Ex.PF and the FIR Ex.PF/2, it is clearly transpired that Ram Singh accused caught hold of Ranjit Singh whereas Dharambir accused inflicted jelly blows lathiwise. On receipt of the injuries, Ranjit Singh accused fell down. 15. Having pondered over the aforesaid argument, we do not find any merit in the aforesaid contention. On cursory look of the statement Ex.PF and the FIR Ex.PF/2, it is clearly transpired that Ram Singh accused caught hold of Ranjit Singh whereas Dharambir accused inflicted jelly blows lathiwise. On receipt of the injuries, Ranjit Singh accused fell down. Though mention all the injuries on the head of Ranjit Singh have not been made by Rattan Singh complainant (PW6) in the FIR, yet he has used the word “injuries” which were caused by the accused. FIR is not an encyclopedia where everything in minute is required to be detailed. The word “injuries” mentioned by Rattan Singh complainant while appearing in the witness box as PW-6 has been duly explained in his substantive statement and the said version was corroborated by the other injured witnesses namely Shamsher Singh (PW7) and Santra (PW9), therefore, this ambiguity in the FIR cannot be treated as an improvement in the eyes of law, rather it extends guarantee to the truthfulness of the rustic and illiterate witnesses. 16. As regards the other argument regarding delay in the FIR, it may be mentioned that the occurrence in this case took place at 1.00 PM, statement of Rattan Singh complainant was recorded at 5.30 PM. The distance between the police station and the place of occurrence was 8 kms. Special report reached the Illaqa Magistrate at 8.20 PM as is clear from Ex.PF/1. It has come in evidence that some time was consumed in calling for three wheeler to shift Ranjit Singh to the hospital. Dr. B.L. Bhagri (PW5) examined Santra wife of Rattan Singh at 2.20 PM, thereafter sent ruqa Ex.PR to the police station Hisar informing about the death of Ranjit Singh who was brought in the Civil Hospital and ruqa Ex.PQ of arrival of Dharambir and Krishan Kumar accused was also sent. Thus, no delay appears to have occurred in lodging the FIR. 17. We also do not feel persuaded by the other argument that there was no intention on the part of Dharambir accused to commit murder of Ranjit Singh; they were relatives inter-se; the occurrence took place on spur of moment due to sudden quarrel and, therefore, the offence, if any, committed by the accused could fall within the ambit of Section 304 Part-II IPC. 18. 18. In order to determine the nature of offence committed by the accused, the Court is to examine the totality of the circumstances i.e. nature of weapon, motive, nature of injuries, force with which the weapon was used and part of the body selected by the accused. While examining the facts of the instant case on the aforesaid parameters, we can form no other opinion then to concur with the findings returned by the trial Court. The accused were annoyed at the fight which took place between Rattan Singh and Dharambir accused during day in which the latter had suffered injuries. Thereafter at 1.00 PM, the accused armed with jellies and lathi came to the house of Rattan Singh and Ranjit Singh, and abused them. Dharambir accused had the grudge against the complainant for causing him injuries during the day. This premeditation on the part of the accused is coupled not only with quarrel during the day but also a strong motive in connection with dispute regarding partition of land. The complainant party was neither proved aggressor nor this case is proved to be that of free fight, rather the accused are proved to be the aggressors. It is not the case of single injury but was of repeated blows with full force on the head of Ranjit Singh (deceased). The injuries found on his head were found to be sufficient to cause death in the ordinary course of nature. 19. In the scheme of Indian Penal Code culpable homicide is the genus and murder is its specie. All murders may be culpable homicide but all the culpable homicides are not murder. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, Indian Penal Code practically recognizes three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the gravest form of culpable homicide, which is defined in Section 300 as “murder”. The second may be termed as “culpable homicide of the second degree” which is punishable in first part of Section 304. Then there will be “culpable homicide of the third degree” which is punishable under Part-II of Section 304. 20. This is the gravest form of culpable homicide, which is defined in Section 300 as “murder”. The second may be termed as “culpable homicide of the second degree” which is punishable in first part of Section 304. Then there will be “culpable homicide of the third degree” which is punishable under Part-II of Section 304. 20. There exists no hard and fast rule, nor there can be any such rule that by inflicting a single blow, the offence would not fall within the provisions of Section 300 and must always fall within Section 304-I or 304 Part II. The various features, such as, weapon of offence, intention of the assailants, the seat and nature of injuries, the behaviour of the accused, before, during and after the offence and also the motive, if any would indicate to enable the Court to make out as to in which specie of the culpable homicide a case falls. Here it would be apt to refer to a judgment of the Hon’ble Supreme Court in Virsa Singh and others vs. State of Punjab, AIR 1958 SC 465 wherein the Apex Court elaborated the ingredients of Section 300 as under :- “The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew or its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion”. 21. Here in this case, in order to have revenge, the accused Dharambir caused repeated blows on the head of the deceased. 21. Here in this case, in order to have revenge, the accused Dharambir caused repeated blows on the head of the deceased. As per medical evidence, all the three injuries were found either on right parietal region of the skull or temporal region of the skull. As a result of injury No.1, the brain matter came out of the wound. Under these circumstances, it would be very difficult to hold that the accused did not take undue advantage of this quarrel specially when, the complainant party is not proved to be the aggressor, therefore, we are unable to hold that the offence falls within purview of Section 304 Part-II of Indian Penal Code. 22. As regards the request for releasing the accused Ram Singh and Krishan Kumar on probation, taking stock of the circumstances in its entirety and the revenge and fury in the heat of which they caused injuries to the injured, we are unable to extend them benefit of probation. 23. Resultantly, finding no merit in the appeal, the same is hereby dismissed. 24. Chief Judicial Magistrate, Hisar is directed to ensure the custody of the accused-appellants for serving remaining part of their sentence. ————————————