JUDGMENT A.N. Jindal, J.:- A quarrel over the turn of water ensued which culminated into fight, in which accused-appellants Om Parkash and his son Rohtas (hereinafter referred to as ‘the accused’) caused injuries to Jatinder, consequently he died, as a sequel of which, the accused were tried and convicted under Section 302/34 IPC by the learned Additional Sessions Judge, Sonepat, vide its judgment dated 2/10.6.1997 and were sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.20,000/- each. In default of payment of fine to further undergo rigorous imprisonment for one year. 2. Narinder complainant (PW2) was brother of the deceased Jatinder and Maman (PW3) was their uncle from neighbourhood. On the night of 28.1.1996, complainant along with the deceased and Maman were present in their fields at Bantiwala, for the turn of water. Accused Om Parkash came there and uttered that they were in the habit of cutting their water 5 minutes prior to the appointed time, as such, today they will have to cut their water 10 minutes later to the said time i.e. 12.05 PM and if they did so, they would be taught a lesson and then they left the field. Undaunted, the complainant told his brother Jatinder that the time of their turn of water was approaching, therefore, he should go and cut the water at the right time. Accordingly, Jatinder left for the water channel and informed Om Parkash accused that he was going to have his turn. Hearing so, the complainant and Maman also followed Jatinder. In the meanwhile, they heard cries of Jatinder “Maar diya, maar diya”, “Bachao, Bachao”. When they reached near Gianiwala Aam, they in the moonlight found that the accused were causing injuries to Jatinder with jelly and spade. On seeing them, both the accused ran away. Jatinder died within minutes. Out of fear, the complainant and Maman remained near the dead body during night. In the morning, the complainant went to Delhi to inform his maternal uncle Nahar Singh about the incident. But Nahar Singh was not available, therefore, he returned to the village and went to Police Station, Baroda and made his statement Ex.PB to SI Om Parkash, on the basis of which formal FIR Ex.PB/1 was recorded. Law was set in motion. In the morning, the complainant went to Delhi to inform his maternal uncle Nahar Singh about the incident. But Nahar Singh was not available, therefore, he returned to the village and went to Police Station, Baroda and made his statement Ex.PB to SI Om Parkash, on the basis of which formal FIR Ex.PB/1 was recorded. Law was set in motion. SI Om Parkash in the company of Narinder and Puran Lamberdar reached the place of occurrence; conducted inquest proceedings Ex.PN/1; sent the dead body of Jatinder to Civil Hospital, Gohana for postmortem examination; arrested the accused; took the jelly, spade and the blood stained earth into possession vide memos Ex.PC and Ex.PD respectively; prepared the rough site plan Ex.PU; recorded statements of the witnesses; collected autopsy report and on completion of the investigation, challan against the accused was presented in the Court. 3. The accused were charged under Section 302 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. 4. During trial, the prosecution examined Harbans Lal Patwari (PW1), Narinder complainant (PW2), Maman (PW3), Hawa Singh (PW4), Dr. Karamvir (PW5), HC Karambir Singh (PW7), Ajmer Singh (PW9), Ishwar (PW10), Narain Dutt (PW11), Inspector Mahinder Singh (PW12), Ramphal UGC (PW13) and SI Om Parkash (PW14). 5. The accused when confronted with the incriminating circumstances appearing against them, in their statements recorded under Section 313 Cr.P.C, they denied the same and pleaded their false implication in the case. 6. In defence, they examined Zile Singh (DW1). 7. The trial ended in conviction, hence this appeal. 8. We have heard Mr. R.S. Cheema, learned senior counsel for the appellants, Mr. Kulvir Narwal, learned Additional Advocate General, Haryana and perused the records of this case with their able assistance. 9. The prime contention advanced by the learned counsel for the appellants is that there is delay of 17 hours in lodging the FIR, which being unexplained, has resulted into deliberations, consequently exaggerations of the facts and manufacturing of the prosecution could be made, the benefit of which should go to the accused. The argument is without merit. The occurrence in this case took place in the midnight, whereas the FIR was recorded by the police on the next day i.e. 29.1.1996 at 5.00 PM. The argument is without merit. The occurrence in this case took place in the midnight, whereas the FIR was recorded by the police on the next day i.e. 29.1.1996 at 5.00 PM. The complainant Narinder (PW2) has explained the delay in the words that “his brother has been killed and his father is not alive, he needed help of some kith and kin to assist him, therefore, while avoiding any problem which may arise at the end of the accused, he waited till morning, then in the morning he left for Delhi to inform his maternal uncle Nahar Singh. Since he was not available, therefore, after leaving message about the incident, he returned to the village and after taking Lamberdar Puran, went to the police station. This fact has not only been disclosed by the complainant in his statement Ex.PB, but he also explained the same at the time when he stepped into the witness box. Nevertheless, he was unable to give the exact time when he left for Delhi and returned from there but one fact has been established on the record that the distance between Gohana and Delhi is about 100 kms and he had to change buses at least at 2-3 points to reach Delhi, thus, in all human probabilities, while putting the circumstances on the envil of natural human behaviour, such time must have been consumed to go and return from Delhi and then to reach police station. The factum that there was a turn of water of the accused as well as of the complainant during the night indicates that both the accused and the complainant were present in the fields. It also appeals to the common sense that during night hours, one does not go alone for taking turn of water. Moreover, necessity of the other person arises as one takes care the source of water and other making the passage for the water in the channels and the beds of the land. The dead body was recovered from the water channel is also not in dispute. The deceased had no previous enmity against the accused, therefore, the witnesses had no axe to grind against the accused for implicating them in this case. The dead body was recovered from the water channel is also not in dispute. The deceased had no previous enmity against the accused, therefore, the witnesses had no axe to grind against the accused for implicating them in this case. As such, the delay, if any, occurred in registration of the case, does not in any way effect the substratum of the prosecution case particularly when the witnesses have fully supported the prosecution case and no fabrication has been pointed out by the learned counsel for the appellants. 10. We also do not find any force in the contention that though, jelly a pointed weapon and spade a blunt weapon were used, yet no incised wound was detected by Dr. Karamvir (PW15) on his body which also belies the presence of the witnesses at the spot. 11. No doubt, the witnesses have not explained in the FIR as to in what manner the injuries were caused by the accused to the deceased, but they have consistently stated that the accused Om Parkash was armed with jelly, whereas Rohtas accused was armed with spade and they had seen them causing injuries to the deceased. They had no where stated that the injuries were caused by the accused from the sharp side of the weapons. Dr. Karamvir (PW15) has stated that the possibilities of these injuries as a result of spade (Ex.P2) and Jelly (Ex.P3) could not be ruled out. It is a matter of common experience that if these weapons are used from the blunt side, then the injuries like abrasions, contusions and lacerations could be caused. Thus, no conflict of medical evidence could be depicted with the oral version. The deceased was killed in the water channel. Dr. Karamvir (PW15) has opined that cause of death was asphyxia due to drowning and hemorrhage with hyphovolaemic shock. 12. Mr. R.S. Cheema, learned counsel for the appellants has vehemently contended that neither there are allegations that the accused drowned the deceased, nor the witnesses, if present, would have allowed the accused to drown the deceased. 13. Dr. Karamvir (PW15) has opined that cause of death was asphyxia due to drowning and hemorrhage with hyphovolaemic shock. 12. Mr. R.S. Cheema, learned counsel for the appellants has vehemently contended that neither there are allegations that the accused drowned the deceased, nor the witnesses, if present, would have allowed the accused to drown the deceased. 13. With due respect to the aforesaid argument, it may be observed that since the accused gave beatings to the deceased in the water channel as his dead body was also found from the water channel, therefore, possibility of inhaling of water in the process of suffering of injuries by the deceased could also contribute to his death besides hemorrhage with hyphovolaemic shock and also due to injuries No.1 to 10, which became the cause of death. Thus, the argument that the accused did not drown him is not substantiated. Faced with the situation, learned counsel for the appellants has extended another argument in the alternative to the fact that the dispute between the parties emerged on account of a sudden quarrel over the turn of water. The parties had no history of previous enmity. The occurrence took place in the heat of passion, though the weapon used were sharp and pointed ones, but the injuries appeared to have been caused from the blunt side, therefore, the accused certainly had no intention to cause death of the deceased. 14. Having deliberated over the contentions and examining the aggravating and mitigating factors and circumstances in which the crime had been committed, we observe that from the evidence on record, the following facts come to surface :- 1. The parties had no previous enmity; 2. The occurrence took place as a result of sudden quarrel when the complainant Narinder along with his uncle Maman and brother Jatinder (deceased) reached the water channel, then the accused prevented them to have the turn of water at the exact time, but wait for 5 minutes after the appointed time as he has been previously cutting the water 5 minutes earlier to his turn. But, when the complainant party did not agree, the accused felt offended and quarrel ensued. As such, the crime appears to have been committed as a result of sudden quarrel; 3. But, when the complainant party did not agree, the accused felt offended and quarrel ensued. As such, the crime appears to have been committed as a result of sudden quarrel; 3. The accused did not bring any weapon, but they were presumed to carry those weapons at that time as they were to cut the water with the spade; 4. The accused did not use the pointed part of the jelly and sharp side of the spade, but caused injuries with the blunt side of these weapons and no injury independently was sufficient to cause death, however, the entry of the water due to the posture in which the deceased was lying in the water channel as well as the injuries collectively were held sufficient to cause death in the ordinary course of nature; 5. The fatal injuries appear to have not been inflicted with an intention to cause death; 6. No pre-meditation or planning on the part of the accused could be smelt out so as to treat it as a planned crime; 7. The incident occurred per-chance and as a result of heat of passion; 8. The accused did not take undue advantage or acted in a cruel or unusual manner. 15. The necessary elements regarding motive, revenge, greed, jealousy or suspicion are missing. The Apex Court while determining regarding intention of the accused, whether the act falls under Section 304 Part II IPC recommended to take into consideration various factors which have been enumerated in case Pulicherla Nagaraju alias Nagaraja Reddy vs. State of A.P., 2007 (1) Supreme Court Cases 500, while observing as under :- “28. The following legal position regarding single blow injury, was summed up in Jagrup Singh vs. State of Haryana, AIR 1981 SC 1552, thus: “6. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304 Part II of the Code. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304 Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must in the absence of any circumstances negating the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause firstly or clause thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death”. 29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters – plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed; jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offenes punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offenes punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances wit h reference to individual cases which may throw light on the question of intention. Be that as it may.” 16. While examining the instant case on the aforesaid parameters as set out by the Apex Court, we are afraid if the offence under Section 302 IPC is attracted. However, it would be safe to hold that the offence committed by the accused in the heat of passion, as a result of sudden quarrel, certainly would fall within the purview of Section 304 Part-II IPC. For the foregoing reasons, we partly allow the appeal, set aside the impugned judgment and convict the accused under Section 304-II instead of Section 302 IPC. Consequently, the sentence awarded against the accused-appellants is reduced to 7 years without altering the sentence of fine which would be treated as awarded under Section 304-II IPC. Chief Judicial Magistrate, Sonepat is directed to take necessary steps to procure the custody of the accused-appellants to serve remaining part of their sentence. —————————————