JUDGMENT 1. - Anoop @ Dhola, a teenager girl, ran blindly and threw herself into the well to escape the fury of the assailants. The assailants, appellants herein, were put to trial for having committed offence of murder of the girl. Challenge in this appeal is to the judgment dated May 23, 2003 of the learned Additional Sessions Judge (Fast Track) Behror District Alwar, whereby the appellants, five in number, were convicted and sentenced as under : Satyaveer Singh, Ranveer Singh, Lali Devi and Maya Devi U/s. 302 IPC Each to suffer imprisonment for life and fine of Rs.500/-, in default to further suffer simple imprisonment for three months. U/s. 148 IPC Each to suffer rigorous imprisonment for two years and fine of Rs.200/- in default to further suffer simple imprisonment for one month. U/s. 323 IPC Each to suffer rigorous imprisonment for six months and fine of Rs.200/-, in default to further suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently. Lixmi @ Laxmi Devi : U/s. 148 & 323 IPC : Instead of sentencing benefit of probation was extended. 2. It is the prosecution case that on September 23, 2001 informant Sheotaj Singh (Pw.2) submitted a written report (Ex.P-5) at police Station Mandan stating therein that on the said day around 6.30 PM Satyaveer, Maya, Laxmi, Vijendra, Bhagwan Singh, Lali and Ranveer gave beatings to informant, his daughters viz. Anoop @ Dhola, Mukesh, Kamfesh and his wife and they pushed Anoop down into a well. On that report case under sections 143, 341, 323 and 307 IPC was registered and investigation commenced. Necessary memos were drawn and statements of witnesses were recorded. During the course of investigation Anoop @ Dhola succumbed to her injuries and section 302 IPC was added. The appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Behror District Alwar. Charges under sections 148, 341, 323 and 302/149 IPC were framed against the appellants, who denied the charges and claimed trial. The s prosecution in support of its case examined as many as 14 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. One witness was examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. 3. The s prosecution in support of its case examined as many as 14 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. One witness was examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. 3. We have heard the submissions and weighed the oral and documentary evidence. 4. As per post mortem report (Ex.P-13) following ante mortem injuries were found on the dead body : 1. Lacerated wound 3 cm x 4 cm on Rt.leg above knee joint posteriorly fracture of Rt. femor bone. 2. Abrasion 15 cm x 10 cm on Rt. side of back. 3. Abrasion 6 cm x 4 cm on left thigh laterally. 4. Abrasion 12 cm x 8 cm on Rt. side of chest laterally. 5. Lacerated wound 2.5 cm x 1.5 cm x skin deep on Rt. perietal region. 6. Abrasion 10 cm x 6 cm on Rt. thigh laterally. According to Dr. Veer Singh Yadav (Pw.3) the cause of death was internal hemorrhage as a result of damage to liver and Rt. lung leading to hemorrhagic shock. 5. Rajesh (Pw.13) vide injury report (Ex.P-9) received following injuries 1. Abrasion 2.5 cm x 2 cm on left shoulder laterally. 2. Contusion 1 cm x 1 cm on left perietal region. 6. Injury report (Ex.P-10) of Mukesh (Pw.8) reads as under : 1. Bruise with redness 6 cm x 1.5 cm on upper half of left forearm. 2. Lacerated wound 1.5 cm x 1 cm x skin deep on left forearm near wrist joint. 3. Bruise with redness 4 cm x 1.5 cm on left side of back. 7. The prosecution case is founded on the testimony of Sheotaj (Pw.2), Mukesh (Pw.8) and Rajesh (Pw.13). Sheotaj in his deposition stated that on September 23, 2001 around 6.30 PM while he was returning from village Satyaveer and his family members attacked him, when his wife, son and daughters intervened they were also beaten up. All the assailants gave beating to Anoop and Satyaveer, Ranbeer, Maya and Lali pushed Anoop into the well. Testimony of Sheotaj (Pw.2) gets corroboration from the evidence of Mukesh. All the assailants gave beating to Anoop and Satyaveer, Ranbeer, Maya and Lali pushed Anoop into the well. Testimony of Sheotaj (Pw.2) gets corroboration from the evidence of Mukesh. However Onkar Mal (Pw.14), who investigated the case, deposed that it could not be established in the investigation that the appellants pushed Anoop @ Dhola into the well : " ;g lgh gS fd bl eqdnesa esa esjh rQrh'k esa ;g ckr lkfcr ugha ikbZ xbZ fd eqyfteku us e`rdk yM+dh vuwi mQZ /kksyk ds gkFk&iSj idM+dj dq,Wa esa Mkyk gksA " 8. Factual situation emerges from material on record may be summarised thus : (i) Prosecution is able to establish that after appellant Satyaveer Singh inflicted injury on the head of deceased, she started running and fell into dry well. (ii) Injury on head attributed to Satyaveer Singh gets corroboration from post mortem report. (iii) The death was caused without premeditation and Satyaveer did not act in a cruel or unusual manner. Incident appears to have been occurred on a spur of moment. (iv) There is no trustworthy evidence on record to prove that the appellants pushed the deceased into well. 9. It is well settled that the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. 10. Bearing this principle in mind, we proceed to analyse the evidence adduced at the trial. 11. According to investigating officer the appellants were not involved in pushing Anoop into the well. Conjoint reading of prosecution witnesses reveals that something suddenly sparked and appellants inflicted injuries on the person of the deceased. From the attending facts, we can only infer that because of fear of beating deceased started running and fell into a dry well. Injuries over liver and right lung that were ultimately found fatal, have not been attributed to appellant. It however appear that after receiving injury on the head Anoop fled blindly and fell into the well. 12. In these facts and circumstances we have to see as to whether Exception I to Section 300 IPC is attracted or Exception 4 ? 13. In Babulal Bhagwan Khandare v. State of Maharashtra, 2005 (2) WLC (SC) Cri. It however appear that after receiving injury on the head Anoop fled blindly and fell into the well. 12. In these facts and circumstances we have to see as to whether Exception I to Section 300 IPC is attracted or Exception 4 ? 13. In Babulal Bhagwan Khandare v. State of Maharashtra, 2005 (2) WLC (SC) Cri. 574 : 2005 (10) SCC 404 , the Apex Court analysed Exception 4 and Exception 1 thus:- (para 16) "The Fourth Exception of Section 300. IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, 5 for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1: but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. 5 A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be 5 noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be 5 noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal, altercation in the beginning. A fight is a combat between two and o more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a 5 sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan, AIR 1993 SC 2426 it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage. 14. As earlier noticed that in the instant case the incident occurred all of a sudden when the informant had gone to the house of the appellants. The injury on head of deceased, which was found simple, had been attributed to appellant Satyaveer Singh alone. Though he did not act cruelly yet the way he forced the deceased to run blindly and threw herself into the well to escape his fury, made him guilty for the offence of culpable homicide not amounting to murder. The injury on head of deceased, which was found simple, had been attributed to appellant Satyaveer Singh alone. Though he did not act cruelly yet the way he forced the deceased to run blindly and threw herself into the well to escape his fury, made him guilty for the offence of culpable homicide not amounting to murder. The case against appellant Satyaveer Singh thus comes within the purview of Exception 4 to Section 300 IPC. We however find that charge under section 302 IPC could not be established against other appellants beyond reasonable doubt. They can only be held guilty for having caused simple injuries on the person of Sheotaj, Rajesh and Mukesh. 15. For these reasons, we dispose of the instant appeal in the following terms : (i) We partly allow the appeal of Satyaveer Singh and instead of section 302 we convict him under section 304 part II IPC. Looking to the fact that the appellant has already undergone confinement for a period of more than seven years, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We however maintain his conviction and sentence under sections 148 and 323 IPC. Since Satyaveer Singh has already suffered the sentence awarded to him under sections 148 & 323 IPC, we direct that he shall be set 3 at liberty forthwith, if he is not required to be detained in any other case. (ii) We partly allow the appeal of Ranveer Singh, Lali Devi and Maya Devi and while acquitting them of the charge under section 302 we maintain their conviction under sections 148 and 323 IPC 3 and sentence them to the period already undergone by them in confinement. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (iii) We find no merit in the appeal of Lixmi @ Laxmi Devi and maintain her conviction under sections 148 and 323 IPC. She 4 was released on probation under the provisions of Probation of Offenders Act to keep peace and good behaviour for a period of one year and the period has already been expired, therefore, no further direction is required to be issued. (iv) The impugned judgment of learned trial court stands modified as 45 indicated above. Appeal Disposed of in above manner. *******