JUDGMENT 1. - Two brothers, Ameen Khan and Sardar Khan being sons of Sultan Khan and Alladdeen Khan s/o Karim Khan stand convicted by the court Additional Sessions Judge (Fast Track) No.1, Jaipur District, Jaipur, vide impugned judgment dated 21.2.2007. The trial court convicted the accused, Alladdeen Khan and Sardar Khan for the offences under Sections 341, 323 and 302/34 IPC and Ameen Khan for the offences under Sections 341 and 302/34 IPC. 2. Having convicted the appellants for the aforesaid offences, 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. 5,000/-, in default of payment of fine, to further undergo one year R.I. U/s 341 IPC- to undergo one month S.I. U/s 323 IPC- to undergo one year R.I. 3. Aggrieved against their conviction and sentence, all the three appellants have preferred the present appeal praying that the conviction and sentence be set aside and they be acquitted of all the charges. 4. The criminal proceedings were set into motion on the basis of statement (Exhibit-P/15) called Parchabayan made by Imamuddin (P.W.5) before S.I., Ram Kumar (P.W.14), who was then posted as SHO at Police Station Chandwaji. The statement (Exhibit-P/15) made by Imamuddin (P.W.5) when translated into English, reads as under:- "Statement of Shri Imamuddin Khan s/o Ahmed Khan caste Musalman, aged 40 years, resident of Chandawas, P.S. Chandwaji, at present admitted for treatment at NIMS Hospital, Chandwaji, stated that I am resident of Chandawas. Today on 12.4.2006, in the morning, I was making Chhapar and my younger daughter aged about ten years was going to well, passing in the front of house of neighbours, namely Ameen Khan and Sardar Khan. After sometime, my daughter came weeping inside the house and told to my younger brother Razak that Ameen Khan, Sardar Khan and Alladdeen Khan had abused her and had restrained her to use the passage. My younger brother went to their house and they all started beating him. Razak raised noise. I and my father went running towards that side. They gave beating to us with lathi and Farsi. The injuries were caused on the head and on the temporal region of my father with Barchhi. He had suffered injuries. Ali Mohammad, Rafiq, Faqir Khan, Ameen Khan etc. all residents of colony with difficulty saved us from their hands. I and my father went running towards that side. They gave beating to us with lathi and Farsi. The injuries were caused on the head and on the temporal region of my father with Barchhi. He had suffered injuries. Ali Mohammad, Rafiq, Faqir Khan, Ameen Khan etc. all residents of colony with difficulty saved us from their hands. Number of residents of colony had gathered there. I had also suffered injuries on the temporal region, nose and left hand. Younger brother Razak had not suffered much harm. The residents of village in a jeep brought us to NIMS Hospital. My father had suffered serious injuries on the head and he is unconscious." 5. The aforesaid statement of Imamuddin (P.W.5) was recorded on 12.4.2006 at 2:05 PM. On the basis of the statement (Exhibit-P/15), a formal FIR (Exhibit-P/23) bearing No. 95/06 was registered at the Police Station Chandwaji on 12.4.2006 at 2:30 PM for the offences under Sections 323 and 341 IPC. Subsequently, Ahmed Khan, father of the complainant, Imamuddin (P.W.5) died on 12.4.2006 at 9:00 PM. 6. Dr. Ravi (P.W.16) on 13.4.2006 being posted as Medical Jurist at SMS Hospital, Jaipur, at 10:20 AM, conducted the autopsy on the dead body of Ahmed Khan and as per Post Mortem Report (Exhibit-P/29) had found the following injuries on the person of the deceased, Ahmed Khan:- "(i) Stitched wound of 5cm present over left side forehead to right side of face lateral to right eye with dry red clotted blood. (ii) Stitched wound of 2cm, present over left side of face in front of left ear with dry red clotted blood. (iii) Abrasion of 1 x 1/2 cm present over left lateral malleolus with dry red clotted blood. All the injuries were ante mortem in nature" 7. On internal examination of skull, scalp and vertebrae, doctor had made following observations:- "Scalp- (i)Stitched wound of 6cm present on left parietal region with dry red clotted blood. (ii) Stitched wound of 3cm present on right frontal region with dry red clotted blood. On further examination sub-scalp hematoma of dark red colour present all over. Skull- Fracture line extending from left frontal bone to left parietal bone and then to right parietal to right occipital bone with red hematoma. Membrane- being tense. Brain- thick SDH over both fronto-parietal lobe with underlying brain compressed. On further examination sub-scalp hematoma of dark red colour present all over. Skull- Fracture line extending from left frontal bone to left parietal bone and then to right parietal to right occipital bone with red hematoma. Membrane- being tense. Brain- thick SDH over both fronto-parietal lobe with underlying brain compressed. Brain-(A) Hemorrhagic contusion of size 4 x 3cm over right fronton-parietal - temporal lobe. (B) Hemorrhagic contusion of size 3 x 2cm over left frontal lobe. (C) Contusion of size 31/2 x 21/2 cm over left temporo-parietal lobe. All are occupied by ante mortem hematoma." 8. Dr. Bhairu Lal (P.W.13) on 18.4.2006, after six days of the occurrence, had examined Imamuddin (P.W.5) and as per injury report (Exhibit-P/22) had noted the following injuries on his person:- "(i) Avulsion of nail of left thumb with granulation tissue, simple, blunt. (ii) Almost healed wound, 2 x 0.5cm, right side forehead, simple, blunt. (iii) Neatly healed dorsum of nose with scab formation, 0.5 x 0.5cm, simple, blunt." 9. Dr. Anil Solanki (D.W.1) on 12.4.2006, being posted as Medical Jurist at SMS Hospital, Jaipur, had examined the accused, Sardar Khan and as per injury report (Exhibit-D/10) had noted the following two injuries on his person:- "(i) Stitched wound, right parietal region with (4cm) (1) OSM right leg L/3, 3 x 3 cm, (2) BT left side Abd., dry clotted with surrounding swelling. (ii) Multiple Abrasion of size 2 x 2cm to 1/2 x 1/2 cm, soft red scab over right knee, right leg L/3, left index finger, right head dorsum surface, left knee, simple blunt." 10. This witness (D.W.1) further stated that his colleague Dr. Kedar vide Exhibit-D/12 had examined the accused, Ameen Khan and as per injury report (Exhibit-D/12) had found the following injuries on his person:- "(i) Bruise of size 6.5 cm x 1cm present over right side forehead vertically placed, blood reddish in colour with surrounded by diffuse swelling. (ii) Abraded bruise of size 2cm x 11/2 cm present over left side forearm upper ⅓ part posteriorly with dark clotted blood. (iii) P.O.P covering the right hand wrist joint and right arm except fingers (tips). (iv) Abraded bruise 2 cm x 1cm with dark clotted blood present over left leg. (v) Bruise of size 3cm x 2cm with diffuse swelling over left parietal region with tenderness" 11. The doctor had identified signatures of Dr. (iii) P.O.P covering the right hand wrist joint and right arm except fingers (tips). (iv) Abraded bruise 2 cm x 1cm with dark clotted blood present over left leg. (v) Bruise of size 3cm x 2cm with diffuse swelling over left parietal region with tenderness" 11. The doctor had identified signatures of Dr. Kedar on injury report (Exhibit-D/12) as he was conversant with his writing in discharging day to day duties. 12. A perusal of the injuries on the accused-appellants Ameen Khan and Sardar Khan reveal that Sardar Khan had suffered an injury on the right side of parietal region, whereas Ameen Khan had suffered two injuries on the head. 13. The prosecution in all had examined sixteen witnesses. Fakruddin (P.W.1), Ali Mohd. (P.W.2), Razak (P.W.4), Imamuddin (P.W.5), Rafiq Gauri (P.W.6), Tofan Bano (P.W.7) and Chhoti Bano (P.W.8) had appeared as eyewitnesses. 14. Sikandar Khan (P.W.3) and Islam Khan (P.W.9) had witnessed the various recoveries. Mohd. Akram (P.W.10) being Photographer had taken photographs of the spot. Jagdish Prasad (P.W.12) was posted as Head Constable and was In-charge of Malkhana. Constable, Sohan Lal (P.W.11) had gathered samples from Jagdish Prasad (P.W.12) and had carried the same to the Police Station. Thus, Jagdish Prasad (P.W.12) and Sohan Lal (P.W.11) were examined to prove the link evidence. 15. Ram Kumar (P.W.14) and Chandan Dan (P.W.15) had carried the investigation and they have proved various facets of the investigation. 16. Out of seven eyewitnesses examined by the prosecution, Imamuddin (P.W.5) injured in the occurrence, is the first informant and Razak (P.W.4) though also injured in the occurrence, was not medico-legally examined. 17. Fakruddin (P.W.1) in the court stated that on the day of occurrence, at about 11:00 AM, he was making Chhapar of the house. Then the accused Ameen Khan, Sardar Khan and Alladdeen Khan came while raising noises. Ameen Khan was armed with Pharsi (spear), Sardar Khan was armed with an iron rod and Alladdeen Khan was armed with a lathi. Immediately on arrival, they caused injury on the head of Ahmed Khan. Ameen Khan caused first injury on the head of Ahmed Khan, then Sardar Khan gave an injury and Alladdeen Khan also caused injuries. Due to injuries suffered by Ahmed Khan, he fell on the ground. The accused were beating him. 18. Immediately on arrival, they caused injury on the head of Ahmed Khan. Ameen Khan caused first injury on the head of Ahmed Khan, then Sardar Khan gave an injury and Alladdeen Khan also caused injuries. Due to injuries suffered by Ahmed Khan, he fell on the ground. The accused were beating him. 18. In cross-examination, this witness stated that he had not seen any injury on the person of Sardar Khan, Ahmed Khan etc. This witness further stated that he is not aware whether Sardar Khan had suffered injury on the head or whether hand of Ahmed Khan was broken. However, he further stated that Ahmed Khan had fallen on the stones. 19. Ali Mohd. (P.W.2) in the court stated that on 12.4.2006, at about 11:00/11:30 AM, he was sitting near the Masjid of the village, when accused came raising noise. Ameen Khan, Sardar Khan and Alladdeen Khan gave beating to Ahmed Khan. Ameen Khan was armed with a Farsi, Sardar Khan was armed with iron rod and Alladdeen Khan was armed with lathi. They were causing injuries to him with weapons. Ahmed Khan while lying on the ground was crying. 20. In cross-examination, this witness stated that he had not seen two injuries on the head of Sardar Khan or any injury suffered by accused Ameen Khan. This witness stated that he is not aware whether Sardar Khan etc also given beating, their hands were broken or injuries were caused on their head. This witness stated that he is not aware whether the deceased, Ahmed Khan along with his son Imamuddin (P.W.5) and Razak (P.W.4) armed with weapons entered into the house of the accused and had caused them injuries. 21. Razak (P.W.4) in the court stated that on the day of occurrence at about 11:00 AM, he was going to a flour mill. When he came in front of the house of Sattar Khan, his niece Chhoti Bano (P.W.8) came crying and on asking she informed that she was going to well for bringing ropes when Ameen Khan, Alladdeen Khan and Sardar Khan met her and gave her abuses and had beaten her. When this witness was returning from the flour mill, Ameen Khan, Sardar Khan and Alladdeen Khan met him in front of the house of Sattar Khan and when this witness (P.W.4) raised protest, the accused started beating him there with kick and fist blows. When this witness was returning from the flour mill, Ameen Khan, Sardar Khan and Alladdeen Khan met him in front of the house of Sattar Khan and when this witness (P.W.4) raised protest, the accused started beating him there with kick and fist blows. Tofan (P.W.7) saved him. On the noise raised by this witness, his father Ahmed Khan and brother Imamuddin (P.W.5) came there to separate him from the accused. Thereafter, the accused had gone to their house and then Ameen Khan armed with Farsi, Sardar Khan armed with iron rod and Alladdeen Khan armed with lathi came to their new house. On hearing noise, father Ahmed Khan came outside of the house and immediately on arrival, Ameen Khan caused injury on the head of father with Farsi. Fakruddin (P.W.1) who was making a Chhapar caught hold of Ameen Khan. Then Sardar Khan gave an iron rod blow on the left temporal region on his father and Alladdeen Khan caused injury on the right temporal region. His father fell down. While his father was lying fallen, the accused caused injuries. 22. This witness (P.W.4) further stated that before 12.4.2006, there was no dispute between the parties and he had not seen any injury on the person of accused Ameen Khan and Sardar Khan. The exact words stated by the witness are reproduced below:- " 12-4-06 ls iwoZ eqfYteku ls gekjs dksbZ fookn ugha FkkA eqyteku vehu vkSj ljnkj ds cnu ij eSaus dksbZ pksV ugha ns[kh] buds vLirky esa HkrhZ gksus dk esjs dks irk ugha] xkao okyksa ls buds vLirky esa HkrhZ gksus vFkok pksV yxus dk eSaus ugha lqukA " 23. Imamuddin (P.W.5) also stated that after he had separated Razak (P.W.4) from the accused, after 5/7 minutes Ameen Khan armed with Farsi, Sardar Khan armed with Sariya and Alladdeen Khan armed with lathi came and gave abuses in front of their house. When his father came outside of the house, Ameen Khan caused injury with Farsi on the head of his father. Sardar Khan also caused injury with iron rod on the left side of temporal region. Alladdeen Khan gave a lathi blow on the head of his father. This witness also stated that he had not seen any injury on the person of Ameen Khan and Sardar Khan. Sardar Khan also caused injury with iron rod on the left side of temporal region. Alladdeen Khan gave a lathi blow on the head of his father. This witness also stated that he had not seen any injury on the person of Ameen Khan and Sardar Khan. To be precise, this witness stated as under:- " eSaus vehu vkSj ljnkj ds dksbZ pksVsa ugha ns[khA esjs dks irk ugha fd eqfYteku esa dkSu vLirky esa HkrhZ gqvk] xkoa okyksa us eqfYteku ds HkrhZ gksus dh ckr crkbZ FkhA vehu ds gkFk&iSj VwVs gq, eSaus ugha ns[ks] u gh xkao okyksa us crk;k] ;g crk;k Fkk fd mlds gkFk ij iV~Vk ca/kk gSA xkao okyksa us esjs dks ljnkj ds lj ;k 'kjhj ij yxh gksuk crk;k FkkA vehu vkSj ljnkj ds pksVsa yxh gqbZ Fkh] ;g ckr esjs dks fdlus crkbZ] irk ughaA " 24. Other eyewitnesses, namely Rafiq Gauri (P.W.6), Tofan Bano (P.W.7) and Chhoti Bano (P.W.8) had given same sequence of occurrence and have also stated that they were not aware about the injuries suffered by the accused. 25. From the perusal of the evidence of the eyewitnesses, two important facts have emerged: (a) That in the FIR, it is stated that when Chhoti Bano (P.W.8), younger sister of Imamuddin (P.W.5) was restrained and abused by the accused, then Razak (P.W.4) had gone to make a protest and due to noise raised by him, his father, deceased Ahmed Khan and brother Imamuddin (P.W.5) had gone to save him. Then and there, the occurrence had taken place. However, in court witnesses made departure from the earlier version and introduced the fact that after Razak (P.W.4) was rescued they returned to their house and the accused later by gathering weapons came in front of the house of the complainant. Thereafter, his father came outside and he was caused injuries. (b) That all the witnesses have denied having caused any injury to Sardar Khan and Ameen Khan. Some of the witnesses have stated that they heard about the injuries suffered by the accused but they have not stated that any injury was caused to the accused in self defence. 26. After the prosecution has closed its evidence, the statement of the accused were recorded under Section 313 Cr.P.C. All the accused have denied the incriminating circumstances put to them. 27. 26. After the prosecution has closed its evidence, the statement of the accused were recorded under Section 313 Cr.P.C. All the accused have denied the incriminating circumstances put to them. 27. The accused, Sardar Khan in the court stated that the complainant party entered into their house, gave beating and had lodged a false case. The accused further stated that they have not given any beating to the complainant party. To similar effect is the statement made by Alladdeen Khan and Ameen Khan. 28. We have heard Mr. V.R. Bajwa, counsel appearing for the appellants, Mr. Aladeen Khan, the Public Prosecutor and Mr. Nawab Ali, counsel appearing for the complainant. 29. To us, it is apparent that there is blemish in the statement of the witnesses and they have made departure from the FIR wherein it was stated that the occurrence had taken place when Ahmed Khan, the deceased had gone to rescue Razak (P.W.4). The witnesses in the court made departure from the FIR and for malafide reasons had introduced new story that after the first incident had taken place, accused went to their house and came armed with weapons in front of the house of the complainant party. To us, the occurrence had taken place then and there when Razak (P.W.4) hearing that his niece Chhoti Bano (P.W.8) has been abused and beaten, had gone to raise protest. At that time, Razak (P.W.4) was given beating with kick and fists blows. The deceased, Ahmed Khan went there. Imamuddin (P.W.5) had also gone to rescue his brother Razak (P.W.4) and at that time, the injuries were caused by both sides to each other. 30. Razak (P.W.4) has stated that earlier to the date of incident, there was no dispute between the parties. Thus, the relations between the parties, prior to the occurrence were cordial. In the present case, the parties are neighbours. Over a trivial issue regarding the girl child of the family being restrained by the accused, the matter had flared up and the occurrence had taken place. All the witnesses have denied having caused injury to Sardar Khan and Ameen Khan. Sardar Khan had suffered injury on the head and Ameen Khan had also suffered two injuries on the head. Over a trivial issue regarding the girl child of the family being restrained by the accused, the matter had flared up and the occurrence had taken place. All the witnesses have denied having caused injury to Sardar Khan and Ameen Khan. Sardar Khan had suffered injury on the head and Ameen Khan had also suffered two injuries on the head. The witnesses in the court by not disclosing the fact that they have also caused injuries to the accused have not come to the court with clean hands. Similarly, the accused by stating that the complainant party came to their house and had caused injuries to them, and they had not caused any injury to the complainant party, has also not given a truthful version. Both the sides have exaggerated the role of other side and have minimised their own role. It was incumbent for the prosecution to explain injuries on the person of the accused thus, by suppressing that they have also caused injuries to the accused, the prosecution has made it difficult for the court to determine as to which party was aggressor. Similarly, the accused also by not stating that they had caused injuries to the complainant party has left the court to grope in dark to find that what was the trigger point and how the occurrence had erupted. 31. There is a merit in the contention of the learned counsel for the appellant that since there was no previous dispute, and on the day of the occurrence, the accused had restrained Chhoti Bano (P.W.8) and had abused and given beating to her, the complainant party was aggrieved party and they have gone armed to cause injuries to the accused. Even though we find merit in the contention of the learned counsel for the appellants, because of the scant regard by both the parties to the truth, we cannot determine as to who had opened the attack and had caused the first blow. Thus, we can safely say that the mutual conflict developed at the spot, and it was a case of sudden fight. 32. 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). Thus, we can safely say that the mutual conflict developed at the spot, and it was a case of sudden fight. 32. 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." 33. 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." 34. Having held that it is a case of sudden fight, we find that there are only three injuries on the person of the deceased. The eyewitnesses have assigned one injury each to all the three accused. All the witnesses have stated that the first blow was caused by spear by Ameen Khan. The second blow was given by Sardar Khan and third blow was given by Alladdeen Khan. Alladdeen Khan is not injured in the occurrence. His presence at the spot is not stamped. Therefore, there is every possibility that Alladdeen Khan was not present at the spot and injuries to the deceased were caused by both the accused, Sardar Khan and Ameen Khan, who had suffered injuries in the occurrence. Had Alladdeen Khan being present at the spot, he would have also suffered injury in the mutual conflict developed between the parties. 35. We are of the view that considering the weapon and total number of injuries on the person of the deceased, Ahmed Khan, and Imamuddin (P.W.5), the said injuries can be caused by both the accused Ameen Khan and Sardar Khan, who suffered injuries in the occurrence. Thus, we will extend benefit of doubt to the accused Alladdeen Khan and shall record his acquittal as a matter of abundant caution. 36. Thus, we will extend benefit of doubt to the accused Alladdeen Khan and shall record his acquittal as a matter of abundant caution. 36. Since, fatal injuries on the person of the deceased, Ahmed Khan were attributed to the accused Ameen Khan and Sardar Khan, we are of the view that both are responsible for the offence under Section 304-I IPC and not under Section 302 IPC. 37. Consequently, as result of above discussion, we convert the conviction and sentence of the appellants, Ameen Khan and Sardar Khan from Section 302 IPC to 304-I IPC by setting aside life imprisonment awarded to them by the trial court and we sentence them under Section 304-I IPC to undergo ten years R.I. and to pay a fine of Rs. 10,000/- each, in default of payment of fine, to further undergo one year R.I. 38. In view of the acceptance of the appeal qua the appellant Alladdeen Khan, we order that the appellant, Alladdeen Khan, be released forthwith, if not required in any other case. 39. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Alladdeen Khan is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Apex Court. *******