JUDGMENT [Per : Hon’ble B.C. Kandpal, J.] This Criminal Appeal, U/S 374(2) Cr.P.C., has been preferred against the judgment and order dated 4.10.1999, passed by Addl. Sessions Judge-I, Dehradun, in S.T. No. 243 of 1996, convicting the accused/appellant for an offence U/S 302 I.P.C. and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo R.I. for three months. 2. Brief facts of the prosecution case are that on 5.6.1996, complainant Yashpal Gupta lodged written report, Ext. Ka-1, at Police Outpost Bindal, P.S. Cantt. District Dehradun, with the allegations that he is posted as Assistant Engineer in Irrigation Department, Roorkee. His family lives at T-4/2, Yamuna Colony Dehradun. On 4.6.1996 he had come to Roorkee along with his family. His son Romil Gupta aged 18 years, a student of 12th class, alongwith his friends Ajay Pandey, Rajiv Rajpal, Dinesh Kashyap and Manish Sharma, all residents of Yamuna Colony, used to go on morning walk daily on Mall Road. On 5.6.1996 also they had gone on morning walk. He and his wife had also gone for a walk on Mall Road. At about 6.30 A.M. when they reached near the gate of Doon School, they saw that Nishu, his companion Paramjit Bari and Sanjiv @ Raja Jethi has surrounded their son and Sanjiv @ Raja gave knife blow to his son. The further contention of the complainant is that companions of his son and he and his wife tried to save his son Romil, the accused Sanjiv @ Raja and his companions also beat them and after giving them the threats of life fled away towards power-house. Seeing the incident parents of Romil became unconscious. Companion of Romil brought the injured to Hospital and when they regained their consciousness, they found Romil dead in the hospital. On the basis of written report, chick F.I.R., Ext.Ka-5, was prepared and a case crime No. 18/1996, U/S 302/34 I.P.C. was registered against the accused in G.D. report No. 17 at 10.50 A.M. carbon copy of which is Ext. Ka-5. 3. The investigation of the crime was handed over to S.O. Haider Raza Zaidi. He recorded the statement of Dinesh Kashyap on 5.6.1996. The I.O. visited the place of occurrence and prepared the site plan Ext. Ka-10. The inquest, Ext. Ka-5. 3. The investigation of the crime was handed over to S.O. Haider Raza Zaidi. He recorded the statement of Dinesh Kashyap on 5.6.1996. The I.O. visited the place of occurrence and prepared the site plan Ext. Ka-10. The inquest, Ext. Ka-12, on the dead body of deceased Romil was conducted by S.I. Ajay Chauhan. Thereafter the dead body was sent for post mortem. The witnesses Ajay Pandey, Dinesh Kashyap and Rajiv Rajpal also sustained injuries in the incident, therefore, they were sent for medical examination. On 6.6.1996 the I.O. arrested accused Paramjit. Thereafter the I.O. arrested the accused Azad Arora. He also arrested accused Nisu. Thereafter he was transferred to P.S. Sahaspur and further investigation was conducted by S.O. Ramanpal Singh. The accused Sanjiv Jethi was arrested and on 20.6.1996, on his pointing out the weapon of assault, i.e. knife was got recovered from near the bushes in front of Doon School at Mall Road. The I.O. prepared recovery memo, Ext. Ka-2 and sealed the knife in a cloth. 4. The post mortem on the dead body of Romil Gupta was conducted by Dr. M.K. Joshi, Doon Hospital, Dehradun on 5.6.1996 at 4.30 P.M. The Medical Officer found the following ante-mortem injuries on the person of deceased Romil : 1. Incised wound 2 cm x 0.5 cm x bone deep on back of left hand, 4 cm below the wrist joint. Obliquely placed, margins clean cut. 2. Punctured wound .2 cm x 0.5 cm x chest cavity deep on front of left side of chest, 7 cm lateral to nipple at 3½ O’clock, position and 9 cms auxiliary pit. Margins were clean cut, directed from left to right and inward. In the opinion of Medical Officer the death has occurred due to shock and haemorrhage as a result of ante-mortem injuries. The doctor prepared post mortem report Ext. Ka-3. 5. On 5.6.1996 at 7.20 P.M., Dr. S.K. Nautiyal, Emergency Doctor, Doon Hospital examined Rajiv Pal and found that he was complaining of pain on his right hip and left thigh. At 7.25 P.M. the Medical Officer examined Dinesh Kashyap and found as many as six abraded abrasions on various parts of his body. The Medical Officer also examined Ajay Pandey the same day at 7.30 P.M. and found one abraded contusion on his shoulder. The doctor prepared injury reports Ext. Ka-6, Ka-7 and Ext. Ka-8 respectively. 6. At 7.25 P.M. the Medical Officer examined Dinesh Kashyap and found as many as six abraded abrasions on various parts of his body. The Medical Officer also examined Ajay Pandey the same day at 7.30 P.M. and found one abraded contusion on his shoulder. The doctor prepared injury reports Ext. Ka-6, Ka-7 and Ext. Ka-8 respectively. 6. The I.O. after completion of investigation submitted charge sheet Ext. Ka-19 against accused Sanjiv Jethi, Nisu, Paramjit and Azad Arora. The C.J.M. Dehradun vide his order dated 13.9.1996, committed the case to the court of sessions. The learned Sessions Judge framed charges U/S 302/34 and 323/34 I.P.C. against accused Paramjit and Azad Arora and further framed charge U/S 302 I.P.C. against accused Sanjiv Jethi @ Raja. The accused denied the charges and claimed their trial. 7. The prosecution in support of its case produced Dinesh Singh, P.W.1, Yashpal Gupta, P.W.2, Dr. M.K. Joshi, P.W.3, Ajay Pandey, P.W.4, H.C. Raghubir Singh, P.W.5, Dr. S.K. Nautiyal, P.W.6, Constable Ramesh Chand, P.W.7, S.I. Haider Raza Zaidi, P.W.8, S.I. Ajay Chauhan, P.W.9 and Inspector Ramanpal Singh, P.W.10. 8. The accused persons, in their statements U/S 313 Cr.P.C. denied the prosecution case and have stated that they have been falsely implicated in the case. 9. The learned Sessions Judge after hearing learned counsel for the parties and perusing the entire evidence on record, found accused Sanjiv Jethi guilty for an offence U/S 302 I.P.C. and sentenced him to undergo life imprisonment and to pay a fine of Rs. 3,000/- and in default of payment of fine to further undergo R.I. for three months. However, the co-accused Paramjit and Azad Arora were acquitted of the charges levelled against them. 10. Feeling aggrieved the accused/appellant Sanjiv Jethi @ Raja has preferred this appeal. 11. We have heard learned counsel for parties and have gone through the record. 12. Learned counsel appearing on behalf of accused/appellant has submitted that the accused/appellant has not committed any crime and he has been falsely implicated in the case. The learned Sessions Judge has acquitted the co-accused and he has committed error of law in convicting the present appellant on the same set of evidence. 13. We do not find any substance in the above submission of learned counsel for the accused/appellant. The learned Sessions Judge has acquitted the co-accused and he has committed error of law in convicting the present appellant on the same set of evidence. 13. We do not find any substance in the above submission of learned counsel for the accused/appellant. It is the specific case of the prosecution that the accused/appellant Sanjiv Jethi @ Raja has caused the death of deceased Romil by giving him knife blows. To prove its case the prosecution has examined the eye witnesses P.W.1, Dinesh Singh, P.W.2 Yashpal Gupta and P.W.4 Ajay Pandey. 14. P.W.1 Dinesh Singh has deposed that he knew Romil Gupta. He, Rajiv Rajpal, Anju Pandey and Romil Gupta used to go on morning walk towards Cantt. On 5.6.1996 also he, Anju Pandey, Rajiv Rajpal and Romil were coming on the road and in front of them three girls were also coming there. The girls were coming ahead of Doon School’s gate and they cross them. Romil turned back and saw towards these girls. Suddenly four boys came there. They were Azad Arora, Paramjit, Nisu and Sanjiv Jethi. All these boys surrounded Romil Gupta and Sanjiv Jethi told Romil that yesterday also he had told him not to see towards the girls. There was exchange of words between Romil and Sanjiv Jethi. At this point of time parents of Romil also arrived there. Sanjiv Jethi asked Nisu to give him knife and after taking knife from Nisu, Sanjiv Jethi started beating Romil Gupta which hit his hand and second blow was hit on the chest of Romil. The witness further deposed that they also intervened and they were also beaten by the accused. Thereafter the accused persons ran away from there. The parents of Romil had become unconscious and Romil was sent to Hospital in a scooter and when they reached Doon Hospital, Romil had succumbed to the injuries. This witness further deposed that he was also got medically examined in the evening. The witness was crossed examined at a great length but nothing material has come out from his evidence which may render him unreliable and untrustworthy. 15. P.W.2 Yashpal Gupta, who is the father of deceased Romil, has lodged the written F.I.R. Ext. Ka.1. He is an eyewitness of the occurrence. When the incident had taken place this witness had arrived there. 15. P.W.2 Yashpal Gupta, who is the father of deceased Romil, has lodged the written F.I.R. Ext. Ka.1. He is an eyewitness of the occurrence. When the incident had taken place this witness had arrived there. He has also seen the incident of knife blows given to the deceased by accused Sanjiv Jethi. This witness has fully corroborated the statement of P.W.1, Dinesh Singh. He has deposed on the person of the deceased at 6.30 A.M. on the day of incident, i.e. 5.6.1996. He further observed that injury no. 2 was sufficient to cause the death of deceased. 16. The witness have deposed that Rajiv Rajpal, Dinesh Singh (P.W.1) and Ajay Pandey (P.W.4) also sustained injuries when they tried to intervene. And this prosecution version finds support from injury reports Ext. Ka-6, Ka-7 and Ka-8, pertaining to Rajiv Rajpal, Dinesh Singh and Ajay Pandey respectively. Dr. S.K. Nautiyal, Emergency Medical Officer, Doon Hospital, had examined the injured persons on the day of incident and had found abraded contusions on the person of Dinesh Singh and Ajay Pandey. 17. Therefore, from the evidence on record, this fact has fully been established that accused/appellant Sanjiv Jethi had caused the death of deceased Romil Gupta by giving him knife blows and the other co-accused had no role in the commission of the crime and the learned trial Judge was justified in acquitting the co-accused from the charges levelled against them, and the accused/appellant can not be extended the benefit of acquittal of co-accused. 18. Learned counsel for the accused/appellant has submitted that when the incident took place the accused/appellant was a lad of 16 years and few months. There was no deliberate intention to cause the death of deceased. The incident has arisen out of a sudden quarrel between the two groups, therefore the act done by him comes within the purview of Section 304-Part-II I.P.C. In support of his submission he has cited before us the following case laws – (1) Ravi Kumar Vs. State of Punjab (2006) Supreme Court Cases (Cri) 738. (2) Addha Vs. State of M.P. 2002 Supreme Court Cases (Cri) 573. (3) K. Ramakrishnan Unnithan Vs. State of Kerala, 1999 Supreme Court Cases (Cri) 410. 19. State of Punjab (2006) Supreme Court Cases (Cri) 738. (2) Addha Vs. State of M.P. 2002 Supreme Court Cases (Cri) 573. (3) K. Ramakrishnan Unnithan Vs. State of Kerala, 1999 Supreme Court Cases (Cri) 410. 19. It is now to be seen as to whether the case of accused/appellant is covered by the provisions of Section 302 I.P.C. or Section 304 (I) or 304 (II) I.P.C. We have also gone through the aforesaid rulings cited by learned counsel for the accused/appellant. 20. In the above cited case of Ravi Kumar Vs. State of Punjab (2006) Supreme Court Cases (Cri) 738, in paragraph-21 the Hon’ble Apex Court has held as under :- “21. The fourth exception of Section 300 I.P.C. 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, 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 the parties puts them in respect of guilt upon an equal footing. 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. If it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is cased (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 noted that the “fight” occurring in Exception 4 to Section 300 I.P.C. is not defined in 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 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 sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage.” 21. In the case of Addha Vs. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage.” 21. In the case of Addha Vs. State of M.P. 2002 Supreme Court Cases (Cri) 573, cited by the learned defence counsel, in paragraph-6 it has been held by the Hon’ble Apex Court – “In view of the fact that the entire incident happened pursuant to a quarrel between two groups of people and that the appellant had no deliberate intention to cause the death of Sher Singh, we do not think that an offence under Section 302 IPC had been made out against the appellant. The incident was the result of a sudden quarrel between the two groups and in that melee the appellant must have used a lathi which caused injury to Sher Singh which ultimately resulted in his death. In that background, it is difficult to hold that the appellant committed the offence of murder. The offence would only come under Section Part II of the Indian Penal Code. Therefore, we acquit the appellant of the offence under Section 302 IPC and find him guilty of offence punishable under Section 304 Part II IPC. 22. In the above cited case of K. Ramakrishnan Unnithan Vs. State of Kerala, 1999 Supreme Court Cases (Cri) 410, noted at serial no. 3, in paragraph-6, the Hon’ble Supreme Court has held as under :- “The scenario in which the appellant has been stated by the eyewitnesses to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he can have said to have the requisite knowledge that death would otherwise be the inevitable result. In such a situation, even on accepting the prosecution case, we hold that the accused did not commit the offence under Section 302 but under Part II of Section 304 IPC. We, accordingly, set aside the conviction of the appellant under Section 302 IPC and instead, convict him under Section 304 Part II. The incident is of the year 1985 and more than 13 years have elapsed. The accused is on bail pursuant to the orders of this Court dated 6.2.1992. Mr. We, accordingly, set aside the conviction of the appellant under Section 302 IPC and instead, convict him under Section 304 Part II. The incident is of the year 1985 and more than 13 years have elapsed. The accused is on bail pursuant to the orders of this Court dated 6.2.1992. Mr. Lalit, appearing for the accused-appellant stated that he has already undergone sentence of about four years. In such circumstances, for his conviction under Section 304 Part II IPC, we sentence him to the period already undergone. His conviction under Section 324 IPC remains unaltered but no separate sentence is being awarded. This criminal appeal is disposed of accordingly. The bail bond furnished by the appellant stands discharged.” 23. Thus, in view of the above observations made by the Hon’ble Apex Court and considering the factual background of the instant case, we are of the considered view that the accused did not commit the offence under Section 302 IPC but part II of Section 304 I.P.C. It is pertinent to mention here that when the occurrence took place the accused was a lad of 16 years and few months. The facts of this case indicate that it was a simple quarrel between the school going lads. There does not appear to be any motive for murder with the accused/appellant. It is a case of grave and sudden provocation. Moreover, the accused/appellant had remained in jail in connection with the commission of this crime for more than four years. The record indicates that the accused/appellant Sanjiv Jethi was arrested on 19.6.1996 and was released on bail on 7.7.2000. He is now on bail for the about ten years. Therefore, it will not be desirable to send the accused/appellant to jail to serve out any further period. We are, therefore, of the view that the accused/appellant should be sentenced for the period already undergone by him, which is about four years and few days. 24. In view of the discussion made above, the appeal is liable to be partly allowed. 25. The appeal is partly allowed. We, accordingly, set aside the conviction of accused/appellant Sanjiv Jethi @ Raja under Section 302 IPC and instead, convict him under Section 304 Part II I.P.C. He is sentenced to the period already undergone by him, which is more than four years and few days. The bail bond furnished by the accused/appellant stands discharged.