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Madhya Pradesh High Court · body

2014 DIGILAW 15 (MP)

Khuman Singh v. State of M. P.

2014-01-06

G.D.SAXENA, S.K.GANGELE

body2014
JUDGMENT Saxena, J. -- 1. The aforesaid two appeals arise out of the impugned judgment and order of conviction and sentence dated dated 27th April, 2010 rendered in Sessions Trial No.231/08 by the Third Additional Sessions Judge, Vidisha (M.P.). Since the judgment and order challenged in these two criminal appeals is one, they are taken up together for hearing and disposal. 2. The appellants herein stood their trial on the charges levelled against them before the learned Additional Sessions Judge and they were convicted and sentenced as following : (a) for the offence punishable under section 148 of IPC, all the appellants herein were sentenced to suffer two-two years’ rigorous imprisonment; (b) for the offence punishable under section 302 accused-appellants Khuman Singh and Himmat Singh while with the aid of section 149, rest appellants Kamal, Prembai and Raghuvir were sentenced to suffer imprisonment for life with payment of fine of Rs.500/- each and in default to undergo additional rigorous imprisonment of six months for causing murder of Khemchand; (c) for the offence punishable under section 323 appellant-accused Raghuvir Singh while rest accused-appellants Khuman Singh, Himmat Singh, Prembai and Kamal Singh with the aid of section 149 of IPC were sentenced to suffer rigorous imprisonment of one-one year for causing simple hurt with common intention to an injured Roshan; (d) for the offence punishable under section 323 of IPC appellant-accused Prembai while rest accused-appellants Khuman Singh, Himmat Singh, Kamal Singh and Raghuvir Singh with the aid of section 149 of IPC were sentenced to suffer rigorous imprisonment of one-one year for causing simple hurt with common intention to an injured Phoolbai; (e) for the offence punishable under section 323 of IPC appellant-accused Kamal Singh was further sentenced to suffer rigorous imprisonment of one year for causing simple hurt with common intention to an injured Rakesh. 3. All the sentences mentioned above were directed to run concurrently with the life imprisonments. 4. The facts, in short, are that on 26th June 2008 at about 2:30 p.m., in agricultural field of Khemchand Kushwah situated in village Murwara, district Vidisha, accused Kamal Singh Kushwah forcibly caused entrance of his 10-12 cattle for grazing. When complainant Rakesh raised an objection and told accused Kamal Singh to take away the cattle from his agriculture field, accused Kamal Singh inflicted blow with an axe and caused injury on elbow joint of left hand. When complainant Rakesh raised an objection and told accused Kamal Singh to take away the cattle from his agriculture field, accused Kamal Singh inflicted blow with an axe and caused injury on elbow joint of left hand. As soon as his grandfather Khemchand and mother raised alarm for help, accused Kamal Singh fled away from the spot and again appeared on the spot with Khuman Singh, Himmat Singh, Hari Singh, Raghuvir Singh and Prembai armed with axe, farsa, lathi. It is alleged that then on the exhortation of accused Kamal Singh, accused Khuman Singh and Himmat Singh caused injuries by means of farsa and lathi to Khemchand on his head resultantly he fell down. Other accused also caused injuries to Roshan and his mother Phoolbai. Khemchand died on the spot. After incident all accused run away. Accordingly, the FIR of the incident was lodged by the complainant on the same day at Police Station Vidisha on which the crime was registered. Investigation was set into motion. After investigation, the charge-sheets were submitted to the concerning criminal Court. On committal and after recording the evidence of the prosecution as well as defence, the learned Sessions Judge convicted and sentenced the accused-appellants for the alleged offences, as mentioned herein above, hence, these appeals. 5. The submissions put forth on behalf of the learned counsel appearing for the accused-appellants in both the appeals are that the judgment of conviction and order of sentence awarded to the accused-appellants are against the record and the law and therefore same are liable to be set aside. It is submitted that to prove the guilt against the accused the prosecution examined eye-witnesses, namely, Rakesh Kushwah (PW2), Phoolbai (PW8) and Roshan (PW9), who are injured and having inimical relations with accused and no independent witness who were present on the spot were led to be examined by the prosecution. That apart, it is submitted that the statements of above witnesses are not corroborating to the medical evidence and the witnesses of seizure and recovery failed to support the prosecution version. Hence, the prosecution by the evidence of these witnesses failed to establish its case beyond reasonable doubts. That apart, it is submitted that the statements of above witnesses are not corroborating to the medical evidence and the witnesses of seizure and recovery failed to support the prosecution version. Hence, the prosecution by the evidence of these witnesses failed to establish its case beyond reasonable doubts. All the prosecution witnesses were having inimical terms with the accused-appellants as they deposed that accused Kamal Singh, Khuman Singh and Hari Singh having axe, farsa and Khunta (a pointed punk used for tyeing the cattle with rope) caused injuries to the deceased as well as other injured but this version of eye-witness are belied by the evidence of Dr. B.L.Arya (PW3). So, in the background of these facts, it is submitted that if the Court comes to hold that deceased Khemchand died due to injury caused by Khuman Singh then it has to be seen that only one injury was sustained by the deceased on his head and no repeated blows were caused by the accused Khuman Singh. In that circumstance accused Khuman Singh, according to his learned counsel, is liable to be convicted for commission of offence under section 304 Part-II IPC. It is further pointed out that from ocular evidence of the witnesses, no ingredients of formation of unlawful assembly for causing murder of Khemchand and its common object are proved. In view of that the conviction of other accused for formation of unlawful assembly punishable under section 148 of IPC in causing death of Khemchand is not sustainable in law. It is further submitted that for causing single simple injury to Rakesh (PW-2) which was caused by Kamal Singh at the beginning of the incident could not be attributed to others because they were not present on the spot at that juncture and therefore the conviction and sentence of the rest accused are bad in law. Resultantly, on the basis of above arguments, it is prayed that by allowing the appeals, judgment under challenge may be set aside and the accused-appellants may be acquitted of the charges framed by the trial Court. 6. Per contra, the learned Public Prosecutor appearing on behalf of the respondent-State contended that the prosecution succeeded to prove the guilt against the accused by statements of eye-witnesses, who are injured and whose statements are well supported by the medical evidence as well as recovery of blood stained weapons from the accused. 6. Per contra, the learned Public Prosecutor appearing on behalf of the respondent-State contended that the prosecution succeeded to prove the guilt against the accused by statements of eye-witnesses, who are injured and whose statements are well supported by the medical evidence as well as recovery of blood stained weapons from the accused. It is submitted that after prompt lodging the FIR at police station, the copy of the same was sent to the concerned court which proves compliance of the provisions of section 157 CrPC and so the defence version cannot be accepted that the FIR lodged in this case was anti-dated. All the accused were arrested without delay and on their information under custody the weapons used in the crime were recovered. The recovered weapons and other incriminating articles seized from the spot were sent to the Regional Forensic Science Laboratory for their chemical examination. The report of the Chemical Examiner/Forensic Science Officer also confirmed presence of the blood stains on the weapons and other incriminating articles. It is, thus, argued by the State that the prosecution by adducing evidence successfully proved the guilt and the learned trial Judge rightly convicted and sentenced them. Accordingly, it is prayed that by dismissing the appeals, the conviction and sentence of the accused may be upheld. 7. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor for the respondent-State. Also perused the record of the trial Court and the law applicable to the present case. 8. The question for consideration in these appeals is whether the ingredients of offence of murder are proved by the testimonies of injured eye-witnesses, medical evidence and recovery of weapons used in crime and/or whether the learned trial Judge has committed any illegality in placing reliance on the said materials before reaching at just conclusion. 9. In order to appreciate the rival submissions of the learned counsel for the parties, it would be necessary to consider the evidence on record. 10. To prove the guilt against the accused, the prosecution examined Rakesh Kushwah, the complainant as (PW-2). He stated that on 26th June 2008 at about 2:30 in the noon, he was on his agricultural field at Murwara. By that time, his grandfather Khemchand, mother Phoolbai and brother Roshan were also available in the field. At that juncture, accused Kamal came and pushed his cattle in his field. He stated that on 26th June 2008 at about 2:30 in the noon, he was on his agricultural field at Murwara. By that time, his grandfather Khemchand, mother Phoolbai and brother Roshan were also available in the field. At that juncture, accused Kamal came and pushed his cattle in his field. Complainant asked the accused to take his cattle way as he has to sow crops on which accused Kamal quarrelled and thereafter inflicted injuries with an axe on right hand and on thumb of left hand. When his mother Phoolbai, grandfather Khemchand and brother Roshan on hearing cry rushed to the spot for pacifying the dispute, accused Kamal called his companions, namely, Himmat Singh, Khuman Singh, Hari Singh, Raghuveer Singh and Prembai. Then, accused Khuman Singh with a farsa and accused Himmat Singh with a lathi caused injuries which were received on the head and ear by his grandfather Khemchand. Accused Raghuveer and Prembai also caused injuries by means of lathi on the body of his mother Phoolbai. Accused Hari Singh and Kamal Singh also caused injuries to this witness and his brother Roshan. His grandfather Khemchand died in the way to the hospital. He lodged the F.I.R. (Ex.P-3) in Police Station Dehat Vidisha. Thereafter, the injured were referred for medical examination and treatment to the District Hospital Vidisha. Police prepared spot map vide Ex.P-4 and seizure memo of bloodstained and simple soil from the spot by seizure memo vide Ex.P-5. He also lodged the written information vide Ex.P-6 regarding death of his grandfather with the police. 11. Phoolbai (PW-8), the injured and mother of complainant deposed that on the day of incident at about 2:30 p.m., she and her sons Rakesh, Roshan and her father-in-law Khemchand were repairing their hut. By that time, accused Kamal pushed his 10-12 cattle in their field for grazing. As her son Rakesh restrained the accused, accused Kamal quarrelled and inflicted with an axe injuries on left thumb of hand and on right hand of Rakesh. As she, her son Roshan and father-in-law reached on the spot for settling the quarrel, accused Kamal along with other accused reached on the spot then accused Khuman by means of farsa and accused Himmat by means of lathi caused injuries on the head and back of head of her father-in-law Khemchand. Thereafter, accused Prembai caught hold of her hands. As she, her son Roshan and father-in-law reached on the spot for settling the quarrel, accused Kamal along with other accused reached on the spot then accused Khuman by means of farsa and accused Himmat by means of lathi caused injuries on the head and back of head of her father-in-law Khemchand. Thereafter, accused Prembai caught hold of her hands. Accused Hari Singh caused injury on her ribs. Lastly, accused Hari and and Raghuvir caused injuries by means of lathi on the body of her son Roshan. 12. Roshan (PW-9), an injured witness well supported the version of Rakesh and Phoolbai and stated that on first phase of incident, accused Kamal inflicted injuries by means of an axe on the body of his brother Rakesh and thereafter in subsequent incident all accused reached on the spot to support the accused Kamal when accused Khuman Singh by means of farsa and accused Himmat Singh by means of lathi caused injuries on the head of Khemchand. His mother Phoolbai was assaulted by Hari Singh and Prembai by means of Khunta. He was injured by means of Khunta and lathi by accused Hari Singh and Raghuvir. As per version of these eyewitnesses, Motilal, Lalu and Babloo also reached the spot but they were not examined by the prosecution. Suggestion taken by the defence that all accused supported Smt. Gulabbai in property dispute against Khemchand and for this reason the accused were falsely implicated with the crime is denied. Same story was also not established by cogent evidence. Another defence that deceased Khemchand got head injury by falling from height on earth could not be proved by leading cogent evidence. 13. Dr. B.L. Arya (PW-3) deposed that on 26th June 2008, he performed autopsy on the body of Khemchand. During examination, he found one external injury, a lacerated wound ad-measuring 3”x1.5 cm. deep over occipital region. The skull bone was exposed and right eye was blackish. The doctor opined that the death was caused due to coma as a result of head injury. Duration of death was within 24 hours from the postmortem. The said postmortem report is Ex.P-10, written and signed by him. In cross-examination, the doctor admitted that the injury on the person of deceased Khemchand was caused by hard and blunt object. The doctor opined that the death was caused due to coma as a result of head injury. Duration of death was within 24 hours from the postmortem. The said postmortem report is Ex.P-10, written and signed by him. In cross-examination, the doctor admitted that the injury on the person of deceased Khemchand was caused by hard and blunt object. The doctor also admitted that the injury as mentioned earlier in the postmortem report may be caused by falling from height. However, no injury either on eye or ear was found during postmortem by the said doctor. 14. On the same day, Dr. Arya examined injured Rakesh and dictated two lacerated wounds, one over left hand of size 1.5x1/2 cm and another over right thumb of size 1/2 cm. which were caused by hard and blunt weapon and were simple in nature. The injury report is Ex.P-7. On the same day, the doctor also examined Smt. Phoolbai and during her examination found tenderness over abdomen and over both hips. The nature of injury was simple which were said to have been caused by hard and blunt object. Said injury report is Ex.P-8. On that day injured Roshan was also examined and found one contusion over right side of lower chest and bruises over right rib, caused by hard and blunt object which were simple in nature. Said injury report is Ex.P-9. 15. On perusal of the statements of Rakesh Kushwah (PW-2) and L.S. Mishra (PW-10), the Investigating Officer, it is clear that the spot map after arrest on information by accused vide Ex.P-4 and seizure memo vide Ex.P-5 were prepared on the day of incident. These documents show that the incident took place on the road nearby place of agricultural field of Khemchand. L.S. Mishra (PW-10) further deposed that on 27th September 2004, he arrested accused Kamal, Khuman Singh andHari Singh. Thereafter on information as furnished about the weapon of crime he seized the axe on producing by accused Kamal, vide Ex.P-27 and the farsa on information furnished by accused Khuman Singh under custody, on producing by him vide Ex.P-26. He seized Khunta on information and producing by accused Hari Singh vide Ex.P-28. On 9.9.2008 on the information furnished by accused Himmat Singh and Raghuvir, the weapons (lathis) were seized vide Ex.P-15 and P-16. Another lathi was recovered on production by accused Prembai vide Ex.P-20. 16. He seized Khunta on information and producing by accused Hari Singh vide Ex.P-28. On 9.9.2008 on the information furnished by accused Himmat Singh and Raghuvir, the weapons (lathis) were seized vide Ex.P-15 and P-16. Another lathi was recovered on production by accused Prembai vide Ex.P-20. 16. All the seized weapons and other articles including blood stained and simple soil seized from the spot and clothes of the deceased were sent for examination to the Forensic Science Laboratory Bhopal. The Chemical Examiner’s report confirmed the presence of blood on the axe seized from accused Kamal, farsa seized from accused Khuman and lathi seized from accused Raghuvirr. The presence of human blood was also found on clothes of deceased. 17. On minute scrutiny of the evidence of complainant and other injured eye-witnesses coupled with medical evidence and seizure of incriminating weapons, it clearly appears that at first phase of incident, on sudden quarrel between the complainant Rakesh and accused Kamal on account of carrying forcibly cattle through agricultural field of Khemchand, accused Kamal inflicted injuries to injured Rakesh on his left thumb and right hand by means of an Axe. However, as per medical evidence said injuries caused on the body of injured were stated to be simple in nature being caused by hard and blunt object. Therefore, accused Kamal is liable to be held guilty for causing injury to complainant Rakesh and his conviction recorded by the learned trial Court for commission of offence under section 323 of IPC requires no interference. 18. Regarding second phase of the incident, the ocular evidence on record shows that when mother of complainant, namely, Phoolbai, grandfather Khemchand and brother Roshan rushed to the spot for settling the dispute, accused Kamal called Himmat Singh, Khuman Singh, Hari Singh, Raghuveer Singh and Prembai. As soon as these persons reached the spot, they started beating the complainant party. Accused Khuman Singh and Himmat Singh inflicted farsa and lathi blows to Khemchand as a result, Khemchand sustained injuries on his head and ear. Accused Raghuvir and Prembai also dealt Phoolbai with lathi blows while accused Hari Singh and Kamal Singh caused injuries to the complainant and his brother. At the time of incident, accused Kamal was armed with an axe, Himmat Singh with a farsa, Hari Singh with a Khunta while Prembai and Raghuvir were armed with lathis. Accused Raghuvir and Prembai also dealt Phoolbai with lathi blows while accused Hari Singh and Kamal Singh caused injuries to the complainant and his brother. At the time of incident, accused Kamal was armed with an axe, Himmat Singh with a farsa, Hari Singh with a Khunta while Prembai and Raghuvir were armed with lathis. Hence, it is clear that accused Himmat Singh, Khuman Singh, Hari Singh, Raghuveer Singh and Prembai being members of unlawful assembly were having common object to scuffle and cause injuries to the complainant who restrained the accused Kamal from grazing his cattle in the agricultural field belonging to the complainant. On the way, the spot of subsequent incident, the accused-party started beating the complainant’s grandfather, brother and mother with their respective weapons. Accused Khuman Singh and Himmat Singh inflicted farsa and lathi blows to the deceased. Accused Premabai caught hold of the hands of Phoolbai to facilitate accused Hari Singh in causing simple hurt to injured Phoolbai. Accused Raghuveer Singh and Hari Singh caused injuries to injured Roshan by means of lathi and Khunta which were simple in nature. As per medical evidence, the injuries caused to injured Phoolbai and Roshan were caused by hard and blunt object and were simple in nature. 19. On perusal, the statements of complainant Rakesh (PW2) Phoolbai (PW-8) and Roshan (PW9), who were eye-witnesses of the incident indicated that accused Himmat Singh, caused injury with a lathi and Khuman Singh caused injury by means of a farsa on the head and the ear of Khemchand. However, the aforesaid fact is belied by the statement of Dr. B.L Arya (PW3). He deposed that at the time of the postmortem he found only one lacerated wound on the back side of the head which was 3” in length and 1 cm. deep. Therefore, after scanning the medical evidence, it is found proved that no injury by means of farsa, a dangerous weapon held by accused Khuman Singh was caused to the deceased in the alleged incident. So, in the absence of any injury by means of farsa, accused Khuman Singh or any other accused cannot be held guilty for sharing common object with accused Himmat Singh. 20. So, in the absence of any injury by means of farsa, accused Khuman Singh or any other accused cannot be held guilty for sharing common object with accused Himmat Singh. 20. In the case of Sripathi and others v. State of Karnataka [ (2009)11 SCC 660 ], A-4 alleged to have stabbed the deceased pursuant to some altercation while A-1 to A-3 held the deceased on being instructed by A-4 to do so. The prosecution version was that A-4 had a knife in his pocket which he suddenly brought out and stabbed the deceased. Under such circumstances, the Hon’ble apex Court held that the conviction of A-1 to A-3 as imposed by the High Court does not appear to be in order. However, the conviction as recorded so far as A-4 is concerned was well founded and no interference was called for. 21. Obviously, the act of accused Himmat Singh was unpremeditated and not contemplated by any other members of the unlawful assembly, hence, the other members of the assembly cannot be held guilty for commission of murder of deceased Khemchand. It is relevant to mention here that members of an unlawful assembly may have a community of object only up to a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object will vary, not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of this section may be different on different members of the same unlawful assembly. At this juncture it would be relevant to refer the decision of the apex Court in the case of Dharnidhar v. State of Uttar Pradesh [2010 AIR SCW 5685], wherein it is held : “The principles controlling the application of provisions of section 149 have been quite well settled by now. At this juncture it would be relevant to refer the decision of the apex Court in the case of Dharnidhar v. State of Uttar Pradesh [2010 AIR SCW 5685], wherein it is held : “The principles controlling the application of provisions of section 149 have been quite well settled by now. Years back, the bench of this Court in Masalti v. State of U.P. [ 1964 (8) SCR 133 : AIR 1965 SC 202 ], declared the dictum of law that the prosecution has to prove against a person, who is alleged to be a member of an unlawful assembly, that the person constitutes the assembly and has entertained along with the other members of the assembly, the common object, as defined by section 141 of the IPC. The crucial question to be determined in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects. For determination of the common object of the unlawful assembly, the conduct of each of the members of the said assembly before the attack, at the time of attack and thereafter, as well as the motive for the crime are some of the relevant considerations. However, the time of forming an unlawful intent is not material because it is possible that in a given case an assembly, which is lawful to begin with, subsequently becomes unlawful. In other words, unlawful intent can develop during the course of the incident at the spot co instanti. {Maranadu v. State by Inspector of Police, Tamil Nadu [(2008)16 SCC 529:AIR 2008 SC (Supp) 534:2008 AIR SCW6210]}.” 22. After examining the evidence, we find that causing of injury on the head of Khemchand, deceased by one of the co-accused, namely, Himmat Singh was individual act of the said particular accused. The injury on the head which became fatal was, thus, solitary act of co-accused-Himmat Singh. In this view of the matter, accused Khuman Singh or any other accused cannot be held guilty for sharing common object with co-accused Himmat Singh as they have not made murderous assault on the deceased which may lead to draw inference that they had shared common object of committing murder with co-accused Himmat Singh. In this view of the matter, accused Khuman Singh or any other accused cannot be held guilty for sharing common object with co-accused Himmat Singh as they have not made murderous assault on the deceased which may lead to draw inference that they had shared common object of committing murder with co-accused Himmat Singh. If the members of the assembly knew or were aware of likelihood of a particular offence being committed in prosecution of a common object, they would be liable for the same. Considering the aforesaid aspect of the matter, the conviction of other appellants except appellant Himmat Singh for commission of murder punishable under section 302 of IPC with the aid of section 149 of IPC is not sustainable and consequently set aside. Further there being no evidence against accused Khuman Singh for causing injuries to any of the injured, his conviction and sentence recorded for commission of offence under section 323/149 are hereby set aside. So, accused Khuman Singh is acquitted of the alleged offences under sections 148, 302/149 and 323/149 of IPC. 23. Now, the question that remains for consideration is whether the intention of accused Himmat Singh was to cause that very injury which ultimately proved fatal and the offence committed by him would be punishable under section 302 of IPC and not under section 304 Part-I or 304 Part-II of IPC. 24. The submission put forth on behalf of the learned counsel for the appellant Himmat Singh is that accused Himmat Singh was deprived of the power of self-control by grave and sudden provocation offered by the deceased as a result he had given only one blow which ultimately resulted in his death and since the accused had not taken undue advantage of the situation by inflicting another blow, the offence committed by him would fall within the Exception of 1 of section 300 of IPC. 25. At this stage, it may be mentioned here that the intention or knowledge necessary in order to render killing culpable homicide must be clearly proved by the prosecution which can usually be done by proof of the circumstances which prove the act or omission in question for the presumption is that a man knows the probable result of his conduct. It would be relevant to reproduce the relevant law. “Section 300 Exception - Where culpable homicide is not murder. It would be relevant to reproduce the relevant law. “Section 300 Exception - Where culpable homicide is not murder. -- Exception 1 : Culpable homicide is not murder if the offender whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos : Firstly : That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly : That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly : That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation : Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.” 26. In the case of Laxminath v. State of Chhattisgarh [ AIR 2009 SC 1383 ], the Hon’ble apex Court held : “In the scheme of the IPC culpable homicide is genus and ‘murder’ its specie. All ‘murder’ is ‘culpable homicide’ but not vice-versa. Speaking generally, ‘culpable homicide’ sans ‘special characteristics of murder is culpable homicide not amounting to murder’. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC 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’. This is punishable under the first part of section 304. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of section 304.” 27. In the case of A. Maharaja v. State of Tamilnadu [2009 CrLJ 3615], the Hon’ble apex Court held : “8. The Fourth Exception of section 300 IPC covers acts done in a sudden fight. Culpable homicide of this degree is punishable under the second part of section 304.” 27. In the case of A. Maharaja v. State of Tamilnadu [2009 CrLJ 3615], the Hon’ble apex Court held : “8. 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, 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 do 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. 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. 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 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. 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 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion 1 equires 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 a 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.” 28. If we consider the case of appellant Himmat Singh in the light of the observations quoted above, it appears that in the heat of passion accused Himmat Singh caused one serious injury by single blow with a lathi on the head of deceased a vital part of body, which became fatal. Thus, it appears that the said accused due to grave and sudden provocation was deprived of self-control in which he attempted on the deceased. Unless there is any evidence on record that the accused had the intention to cause such bodily injury as he knew to be likely to cause death, he cannot be convicted for murder within the meaning of section 300 of IPC. Hence, in the available facts and circumstances of the case, in the opinion of this Court, appellant Himmat Singh could not have been convicted for the offence under section 302 of IPC rather the offence committed by him comes within the purview of section 304 Part-I of IPC. 29. Succinctly, the conviction of the appellant Himmat Singh is altered from section 302 of IPC to section 304 Part-I of IPC. 29. Succinctly, the conviction of the appellant Himmat Singh is altered from section 302 of IPC to section 304 Part-I of IPC. The findings of the trial Court in holding appellant Himmat Singh guilty of offence of murder punishable under section 302 of IPC are set aside and instead he is held guilty for the commission of offence of culpable homicide not amounting to murder, punishable under section 304 Part-I of IPC and sentenced to undergo rigorous imprisonment of eight years with amount of fine of Rs.1,000/- (Rs. One thousand only) and in default to pay fine, he shall suffer rigorous imprisonment of six months. However, his conviction and sentence recorded for rest of the offences under sections 323/149 and 148 of IPC are hereby set aside. Eventually, the conviction and sentence for commission of murder punishable under sections 302/149 and 148 of IPC recorded against all the accused stand hereby set aside in view of the observation made hereinbefore. The conviction and sentence of accused Kamal Singh, Raghuvir Singh and Prembai for causing simple injuries to injured Rakesh, Phoolbai and Roshan, which is an offence punishable under section 323 of IPC in view of the evidence available on record, is hereby maintained with the aid of section 34 of IPC. 30. In view of what has been stated above, both the appeals are allowed in part. Appellant-accused Khuman Singh is on bail. He needs not surrender. His bail bond and surety bonds are discharged. Other accused, namely, Kamal Singh, Raghuvir Singh and Prembai who are on bail directed to surrender for undergoing the remaining impugned sentence for commission of the offence under section 323/34 of IPC. It is directed that if these accused are found to have completed the sentence after setting off the period undergone by them during investigation, inquiry or trial of the case or before the date of such conviction by the learned trial Court against the term of sentence of imprisonment imposed on them by this Court, they shall be released forthwith.