JUDGMENT 1. (Oral) - Dayal, his brother Murari, Komal and Gajan Lal both sons of Ratna, were tried by the court of Additional Sessions Judge (Fast Track), Baran, for causing murder of Moti Lal on 6.10.2000 at 6:00 PM, in village Moja Semara and for also causing simple injury to Ram Charan (P.W.4). The trial court vide impugned judgment dated 6.7.2002, held all the appellants guilty of offence under Section 302/34 IPC and also substantively convicted the appellant Dayal for the offence under Section 323 IPC. 2. Having convicted the appellant, the trial court vide a separate order of even date sentenced them as under:- U/s 302/34 IPC- to undergo life imprisonment and to pay a fine of Rs. 100/- each, in default of payment of fine, to further undergo one month S.I. U/s 323 IPC- to undergo one month S.I. and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo seven days S.I. 3. Aggrieved against their conviction and sentence, all the four accused-appellants preferred D.B. Criminal Appeal No. 1146/2002. They have also sent an appeal through Jail, which was assigned docket No. 1008/2003. Since both the appeals have been filed by the same appellants assailing the common judgment, we shall club both the appeals and decide them together. 4. In the present case, the criminal proceedings were initiated on the basis of statement of Ram Charan (P.W.4) recorded by Rati Ram (P.W.7), who was then posted as SHO, Police Station Shahbad. 5. Rati Ram (P.W.7), while appearing in the court stated that on 7.10.2000, he was posted as SHO, Police Station Shahbad. Ram Charan (P.W.4) accompanied by his younger brothers, Ajmaal (P.W.10), Brahmanand (P.W.12), Pati Ram (P.W.1) and Komal (P.W.16) son of Manphool Sahariya, appeared at the police station and Ram Charan made a statement (Exhibit-P/23) on the basis of which a formal FIR (Exhibit-P/1) was registered. 6. Ram Charan (P.W.4) in his statement (Exhibit-P/23) stated that for irrigation of their field, they used to draw water from the canal. Three days ago, the accused who belonged to village Ganeshpura, came and told that first they will draw the water. It was stated that after mutual consultations, Komal arrived at a decision that for first three days, the accused will draw the water and thereafter, for remaining three days, the complainant party shall irrigate their fields. Three days ago, the accused who belonged to village Ganeshpura, came and told that first they will draw the water. It was stated that after mutual consultations, Komal arrived at a decision that for first three days, the accused will draw the water and thereafter, for remaining three days, the complainant party shall irrigate their fields. It was stated that after three days, the flow of water became less, as accused also drew water from the canal. The complainant, Ram Charan (P.W.4) stated that he went to the fields of accused and stopped the flow of water to the fields of the accused and started irrigating his field. In the evening at about 5:00/6:00 PM, he was sitting outside his house along with his father when all the four accused arrived. The accused-appellant, Dayal was armed with an iron rod and other three were armed with lathis. Immediately on coming, Dayal gave an iron rod blow on the head of Moti Lal, the father of the complainant and remaining three accused also caused injuries with lathis in their hands. Thereafter, Dayal gave an iron rod blow on the left foot of Ram Charan (P.W.4). The occurrence was also witnessed by Ram Prasad (P.W.14). On the noise raised by Ram Charan (P.W.4), co-villagers were attracted to the spot and accused ran away from the spot. Komal was bringing father to the police station while he died on the way. 7. From the above statement, following facts have emerged: (a) That there was a dispute between the parties regarding the turn to draw water from canal for irrigating the fields. (b) That on 6.10.2000, at about 5:00/6:00 PM, the accused Dayal armed with an iron rod and remaining three armed with lathis came in front of the house of the complainant. The accused, Dayal gave one injury on the head of Moti Lal, whereas other three accused have given lathi blows to Moti Lal and Dayal also caused an injury on the left leg of Ram Charan (P.W.4). (c) That the report was made on the next date of the occurrence i.e. on 7.10.2000 at 7:00 AM, after twelve hours of the occurrence and the special report reached Illaqa Magistrate on 9.10.2000 at 11:00 AM. (d) That in the statement (Exhibit-P/23) leading to registration of FIR (Exhibit-P/1), nothing has been stated regarding the injuries suffered by the accused. 8. (d) That in the statement (Exhibit-P/23) leading to registration of FIR (Exhibit-P/1), nothing has been stated regarding the injuries suffered by the accused. 8. Before adverting to the evidence of the eyewitnesses, it will be apposite for us to notice the medical evidence. 9. Dr. K.K. Katiyal (P.W.2) on 7.10.2000 was posted as Medical Officer at Community Health Centre, Shahbad. On the said date, at 11:30 AM, he conducted the autopsy on the dead body of Moti Lal and as per Post Mortem Report (Exhibit-P/5), he found the following injuries on the person of the deceased, Moti Lal: "(i)Lacerated wound, 9 x 2 x 0.5 cm, extending from frontal to parietal region, slightly left to median plane, bone deep, fractures of frontal bone seen through wound. (ii) Bruise, 10 x 1.5 cm, obliquely situated over left infra-scapular to lumber region." The injury No.1 is specifically attributed to the accused-appellant, Dayal. Injury No.2, as per FIR was attributed to all the three accused, but in the court the same has been attributed to the accused-appellant Komal. 10. Dr. K.K. Katiyal (P.W.2) also examined Ram Charan (P.W.4) and as per injury report (Exhibit-P/6) he found following one injury on his person:- "Swelling, 3 x 2 cm, left calf, simple, blunt." The above solitary injury on the person of Ram Charan (P.W.4) is attributed to the accused-appellant Dayal. 11. Dr. K.K. Katiyal (P.W.2), on 7.10.2000, at 3:00 PM, had also examined the accused-appellant, Gajan Lal and as per injury report (Exhibit-P/7), had found the following injuries on his person:- "(i) Lacerated wound, 3 x 0.5 cm x 0.25 cm, occipital region, simple blunt. (ii) Lacerated wound, 1 x 0.25 x 0.25 cm, right elbow dorsum, simple blunt. (iii) Abrasion, 2 x 1cm, left knee, simple, blunt. (iv) Abrasion, 1 x 0.5cm, left knee, simple blunt. (v) Swelling, 3 x 2cm, left elbow, simple blunt." It is required to be noted that the injury No.1 is on the head of Gajan Lal, accused appellant. 12. On the said date and time, Dr. K.K. Katiyal (P.W.2) had also examined the accused-appellant Komal and as per injury report (Exhibit-P/8) he found the following injury on his person:- "Swelling, 2 x 2 cm, left shoulder, simple blunt." 13. On the said date and time, Dr. 12. On the said date and time, Dr. K.K. Katiyal (P.W.2) had also examined the accused-appellant Komal and as per injury report (Exhibit-P/8) he found the following injury on his person:- "Swelling, 2 x 2 cm, left shoulder, simple blunt." 13. On the said date and time, Dr. K.K. Katiyal (P.W.2) also examined the accused-appellant Dayal and as per injury report (Exhibit-P/9), had found the following seven injuries on his person:- "(i) Lacerated wound, 2 x 0.5 x 0.25 cm, vertex, simple, blunt. (ii) Lacerated wound, 1 x 0.25 x 0.25 cm, forehead left side, simple, blunt. (iii) Abrasion, 3 x 0.25 cm, Left parietal region, simple, blunt. (iv) Abrasion, 2 x 1 cm, Left elbow, simple, blunt. (v) Swelling, 2 x 1 cm, scalp vertex, simple, blunt. (vi) Swelling with pain, 2 x 2 cm, Right forearm dorsum, simple, blunt. (vii) C/o pain with swelling, 1.5 x 1.5 cm, Right infra axillary region, simple, blunt." Out of the seven injuries suffered by the accused appellant, Dayal, injuries No. 1 to 3 and 5 are on the head. 14. In the court, Ram Charan (P.W.4), Ajmaal (P.W.10), Brahmanand (P.W.12) and Ram Prasad (P.W.14) appeared as eyewitnesses and Ram Prasad (P.W.14) was declared hostile. Ram Charan (P.W.4), his brother Ajmaal (P.W.10) and Brahmanand (P.W.12) have reiterated that on 6.10.2000 at about 5:00/6:00 PM, all the four accused came. The accused, Dayal was armed with iron rod and remaining three accused were armed with lathis. Immediately on arrival, objecting to the fact as to why the complainant had drawn the water, the accused Dayal, had caused an iron rod blow on the head of Moti Lal and the accused Komal gave injury No.2 on the person of Moti Lal, which is on the left shoulder. The accused, Dayal also caused injury to Ram Charan (P.W.4). 15. In the court, Ajmaal (P.W.10) admitted that all the brothers had given injuries to the four accused persons. However, he stated in the court that injuries were caused after the accused had caused injuries to their father. The accused, Dayal also caused injury to Ram Charan (P.W.4). 15. In the court, Ajmaal (P.W.10) admitted that all the brothers had given injuries to the four accused persons. However, he stated in the court that injuries were caused after the accused had caused injuries to their father. It will be apposite here to reproduce the following portion of the statement of Ajmaal (P.W.10) as under:- " ;g lgh gS fd ge pkjksa HkkbZ;ksa us eqfYteku ds lkFk ekjihV dh Fkh tks esjs firk ds lkFk ekjihV gksus ds ckn dh FkhA " Ajmaal (P.W.10) in the court has attributed the fatal injury on the head of Moti Lal to Komal. 16. Brahmanand (P.W.12) in the court stated that he had not seen any injuries on the person of the accused. The exact words of the witness are as under:- " eSaus eqfYteku ds 'kjhj ij dksbZ pksVsa ugha ns[khA " Ram Charan (P.W.4) in the court stated as under:- " ;g dguk lgh gS fd tc eSa Fkkus x;k rks ogka n;ky [kwu esa gks jgk FkkA n;ky ds [kwu pksVksa ls fudy jgk gksxkA " 17. Thus, from the perusal of the evidence of the eyewitnesses, it is evident that in the FIR (Exhibit-P/1) they have not explained the injuries on the person of the accused. In the court Ajmaal (P.W.10) has taken a categoric stand that they have caused injuries to the accused-appellants after the accused persons caused injuries to their father, Moti Lal. Ram Charan (P.W.4), the complainant in his testimony though admitted that he had seen that blood was oozing from the head of the accused, Dayal, but he was also totally silent with regard to causing of injuries to the accused. Brahmanand (P.W.12) in the court stated that he had not seen any injury on the person of the accused. In these circumstances, the statement of the Investigating Officer, Rati Ram (P.W.7) assume importance. 18. In cross-examination, Rati Ram (P.W.7) admitted that the appellant, Dayal through Siyaram had lodged a report bearing No. 216, but on the basis thereof, no case was registered. This witness further admitted that he had not carried any investigation regarding the injuries suffered by the accused. 18. In cross-examination, Rati Ram (P.W.7) admitted that the appellant, Dayal through Siyaram had lodged a report bearing No. 216, but on the basis thereof, no case was registered. This witness further admitted that he had not carried any investigation regarding the injuries suffered by the accused. We will reproduce the following portion of the testimony of the Investigating Officer as under:- " fnukad 7-10-2000 dks jiV la[;k 216 n;ky eqt0 }kjk ntZ djokbZ xbZA tks ,Dt0Mh0 2 gSA tSlk n;ky us crk;k ogh jiV esa fy[kk FkkA ;g lgh gS fd jiV la[;k 216 esa fl;kjke }kjk n;ky ds lkFk ekjihV djus ds lEcU/k eSaus fl;kjke ds dksbZ c;ku ugha fy,A eksrhyky ds yM+dksa us tSlk c;ku eq>s fn;s eSaus oSls gh ys[kc) fd,A jiV la[;k 216 ij dskbZ eqdnek ntZ ugha gqvk blfy;s eSaus bldh rQ~rh'k ugha ugha eksrhyky yM+dksa o fl;kjke ls rQ~rh'k dhA xokg /kUuk yky o ekuflag ds eSaus c;ku fy, mUgksaus eqfYteku ds lkFk ds lEcU/k esa dqN ugha crk;kA ;g ckr lgh gS fd eqfYteku ds pksVas dSls vk;h bl lEcU/k esa eSaus rQ~rh'k ugha dhA " 19. The accused, Gajan Lal, Komal and Dayal in their statement recorded under Section 313 Cr.P.C., stated that the complainant caused them injuries and have lodged a false report. Murari, the accused-appellant had only pleaded innocence. 20. In defence, the accused examined Ramesh as D.W.1. This witness stated in the court that Dayal, Murari, Gajan lal and Komal came to his house and they asked him to bring spade and pick axe from the house of Pati Ram. This witness further stated that when he went to the house of Pati Ram (P.W.1), he refused to give the same. Then Siya Ram, Brahma, Ajmaal, Moti Ram and Paati Ram came. At that time, Komal was sitting along with Dayal. Then everybody caused injuries to Dayal, Komal and Gajan Lal. The complainant had caused injuries to the accused with axe and lathis. 21. Having examined the FIR (Exhibit-P/1) and the evidence led by the eyewitnesses, we are of the view that both the sides, i.e. the complainant side and the accused party have not come to the court with clean hands. Both the sides have not given true version as to how the injuries were caused to both the sides. 22. 21. Having examined the FIR (Exhibit-P/1) and the evidence led by the eyewitnesses, we are of the view that both the sides, i.e. the complainant side and the accused party have not come to the court with clean hands. Both the sides have not given true version as to how the injuries were caused to both the sides. 22. We cannot become oblivious of the fact that so far the statement (Exhibit-P/23) leading to registration of FIR (Exhibit-P/1) is concerned, the same is completely silent with regard to the injuries suffered by the accused. Therefore, in the FIR (Exhibit-P/1), the complainant has suppressed the origin and genesis of the occurrence. Confronted with the fact that two of the accused had suffered injuries on the head and the accused, Dayal particularly had suffered four injuries on the head, we are of the view that it was incumbent for the prosecution to give some cogent explanation regarding injuries suffered by the accused. Even though, the injuries suffered by the accused are simple in nature, but since they are on vital portion of the body, i.e. head, we cannot ignore the injuries on the person of the accused, especially when, Ajmaal (P.W.10) in the court stated that the injuries were caused to the accused after they had given injuries to their father, Moti Lal. 23. What was the origin and genesis of the occurrence, there are contradictions between three witnesses examined. Ram Charan (P.W.4) in the court stated that he had seen blood oozing from the head of Dayal, but he is completely silent whether any injury was caused to the accused by the complainant party. Brahmanand (P.W.12) had denied having seen any injury on the person of the accused. Similarly, though the accused have taken a stand that they suffered injuries in the occurrence, they are also silent about the injuries caused to Moti Lal and Ram Charan. The Investigating Officer had admitted that the accused had suffered injuries and the version given by them was noted by him in the report No. 216, but same was not investigated. 24. In the situation, where the both parties have tried to concealed the origin and genesis of the occurrence, and aggravated and maximised the role of other party and minimised their own role, we have reverted to the site plan (Exhibit-P/13) to find truth. 24. In the situation, where the both parties have tried to concealed the origin and genesis of the occurrence, and aggravated and maximised the role of other party and minimised their own role, we have reverted to the site plan (Exhibit-P/13) to find truth. As per the site plan (Exhibit-P/13), the occurrence had taken place at Point 'A', which is in the middle of passage 'E to D' and 'F to G'. 'E' to 'D' is the passage going from village Patonda to village Samera, whereas 'F' to 'G' is the passage going from the village Samera to village Muhala and Dhaturia. Thus, the occurrence has taken place at the crossing i.e. Chowk of two passages. The house of deceased Moti Lal at point 'C' is at a far distance from the point 'A' and the house of the complainant Ram Charan is at a little distance from point B. the Investigating Officer while explaining point 'F' to 'G' has stated as under:- "F to G: LFkku vke jkLrk gS tkS lsejk ls eqgky o /krqfj;k tkrk gS blh jkLrs ls rhj ds fu'kkus ls eqfYteku ekjehV dj Hkkx x;sA " 25. Thus, it is apparent that the occurrence has not taken place in the house of the accused but in the passage, therefore, we can safely say that both the parties due to dispute over the turn of water came in front of each other on the passage and caused blows to each other. Thus, it is a case of sudden fight. When the parties met, a mutual conflict developed and both the sides caused injuries to each other. Furthermore, the injury No.1 on the person of Moti Lal is attributed to the accused Dayal and the injury No.2 which is simple injury on the shoulder, in the FIR same was attributed to three persons, but in the court it was specifically attributed to the accused Komal. The simple injury on the person of Ram Charan (P.W.4) is attributed to the accused Dayal. So far the appellant, Gajan Lal and Murari are concerned, they have not caused any injury in the occurrence. 26. It was held by the Hon'ble Supreme Court in the case of Jumman & Ors. v. State of Punjab [ AIR 1957 SC 469 ] as under:- "(24). So far the appellant, Gajan Lal and Murari are concerned, they have not caused any injury in the occurrence. 26. It was held by the Hon'ble Supreme Court in the case of Jumman & Ors. v. State of Punjab [ AIR 1957 SC 469 ] as under:- "(24). In such a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under Section 300, I.P.C., Exception 4. (25). The matter has to be viewed in this way. It is clear that there was no pre-meditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passions, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence Exception 4 to Section 300, I.P.C., applies with the result that the offence is under Section 304 (Part I), I.P.C." 27. A Division Bench of this Court in Buddhi & Ors. v. State of Rajasthan [2007 (1) RCC 228] , relying upon Dharman v. State of Punjab [ AIR 1957 SC 324 ] held as under:- "13. Coming to the incident that occurred with deceased Saltu we find that he sustained injuries in the course of sudden fight ensued in the field of accused party. The complainant party was also armed with deadly weapons and as many as eight accused persons received lacerated and incised wounds on the vital parts. Coming to the incident that occurred with deceased Saltu we find that he sustained injuries in the course of sudden fight ensued in the field of accused party. The complainant party was also armed with deadly weapons and as many as eight accused persons received lacerated and incised wounds on the vital parts. In Dharman v. State of Punjab, AIR 1957 SC 324 the Supreme Court held that when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner and that the case against the accused falls within Exception 4 of Section 300 of the Indian Penal Code and the accused who caused the injury was guilty under Part I of Section 304 and not under Section 302 of the Indian Penal Code." 28. Having held that it is a case of sudden fight, we are of the view that it is a case of individual liability. The appellant, Dayal is responsible for the offence under Section 304-I IPC and not under Section 302 IPC. The appellant, Dayal is also liable for the offence under Section 323 IPC for causing simple injuries to Ram Charan (P.W.4). 29. The accused-appellant, Komal is also liable to be convicted for the offence under Section 323 IPC, for having caused simple injury on the shoulder of Moti Lal, the deceased. Gajan Lal and Murari have not caused any injury in the occurrence, hence they are liable to be acquitted. 30. Consequently, a result of above discussion, we convert the conviction and sentence of the appellant Dayal, from Section 302 IPC to 304-I IPC by setting aside life imprisonment awarded to him by the trial court and we sentence him under Section 304-I IPC to undergo ten years R.I. and to pay a fine of Rs. 10,000/-, in default of payment of fine, to further undergo one year R.I. 31. Having convicted the appellant Komal for the offence under Section 323 IPC, considering that the occurrence had taken place in the year 2000 and the appellant, Komal is in the corridors of the court for the last fifteen years, we deem it appropriate to release the accused Komal on probation to the satisfaction of the trial court. Having convicted the appellant Komal for the offence under Section 323 IPC, considering that the occurrence had taken place in the year 2000 and the appellant, Komal is in the corridors of the court for the last fifteen years, we deem it appropriate to release the accused Komal on probation to the satisfaction of the trial court. We empower the trial court to specify the terms and conditions of the probation. The accused appellant, Komal shall execute his personal bond and bonds of two sureties to the satisfaction of the trial court for undergoing period of probation. 32. However, as stated earlier, the present appeal is accepted qua Gajan Lal and Murari. Their conviction and sentence awarded by the trial court is set aside and they are acquitted of all the charges. The appeal qua Dayal and Komal stand disposed of in above terms.Appeal allowed qua 'G and M' and Appeal disposed of qua 'D and K'. *******