JUDGMENT : Kanwaljit Singh Ahluwalia, J. The present appellant, Ram Dayal @ Gudda s/o Dhulilal, his brother Jagdish and father Dhulilal were tried by the court of Additional Sessions Judge (Fast Track) Chhabra, District Baran for having committed the murder of Mallu @ Karan Singh on 20.12.2006 at 7:00 PM. 2. The trial Judge holding that it is a case of free fight had not applied Section 34 IPC, so far offence under Section 302 IPC is concerned. 2. The trial Judge holding that it is a case of free fight had not applied Section 34 IPC, so far offence under Section 302 IPC is concerned. It will be apposite here to reproduce Para-17 of the judgment, as under:- ^^gLrxr izdj.k esa cpko i{k dh vksj ls eq[; :i ls ;g rdZ fy;k x;k gS fd okLro esa Qfj;knh i{k us loZizFke xqMMk ds lkFk ekjihV 'kq: dh Fkh vkSj mlds ckn vU; vfHk;qDrx.k ds }kjk chp cpko djus ij muds lkFk Hkh ekjehV dh xbZ rc vfHk;qdr xqMMk us vkRe j{kk esa ydM+h dh pksV eYyw ds flj ij ekjhA cpko i{k dh vksj ls ;|fi vfHk;kstu lk{khx.k ls bl ckjs esa izfrijh{k.k fd;k x;k gS fdUrq cpko i{k ds }kjk bl ckjs esa dksbZ izFke lwpuk fjiksVZ Fkkus ij ntZ ugha djk;h xbZ gSA vfHk;qDrx.k us /kkjk 315 n0iz0la0 ds rgr Lo;a dks crkSj lk{kh izLrqr fd;k gS fdUrq bl ckjs esa Li"V lk{; ugha nh gS fd igys xqMMk ds lkFk ekjihV dh xbZ gks vkSj xqMMk us vkRe j{kk esa ydM+h dh pksV eYyw igqapk;h] tcfd vfHk;kstu i{k dh vksj ls ?kVuk dh izFke lwpuk fjiksVZ izn'kZ ih&9 izLrqr dh xbZ gS ftlesa Li"V :i ls vfHk;qDr xqMMk ds }kjk ryokj ls eYyw ds flj ij pksV igqapkuk fy[kk;k x;k gSA lHkh vfHk;kstu lk{khx.k jruyky ih0MCy;w0&3 jkeukjk;.k ih0MCy;w0&5 rFkk xksenhckbZ ih0MCY;w&8 us Li"V :i ls ;g dFku fd;k gS fd vfHk;qDr xqMMk ¼ryokj ls½ us rsxk eYyw ds flj ij pksV igqapk;h FkhA lk{khx.k us Li"V :i ls ;g Hkh dFku fd;k gS fd vU; nksuksa vfHk;qDrx.k /kwyhyky o txnh'k u yVBksa ls jru rFkk jkeukjk;.k ds lkFk ekjihV dh FkhA ;|fi /kkjk 161 n0iz0la0 ds dFkuksa esa vfHk;qDr xqMMk ds }kjk ydM+h ls eYyw ds flj ij pksV igqapkuk fy[kk x;k gS fdUrq bl rF; dks vfHk;kstu lk{khx.k us vius U;k;ky; dFkuksa esa xyr gksuk crk;k gSA iqfyl vuqla/kku vf/kdkjh y[kuyky ds }kjk ;|fi ;g dFku dj fn;k x;k gS fd vuqla/kku esa ryokj ls ekjus okyh dksbZ ckr ugha vkbZ Fkh fdUrq tc izFke lwpuk fjiksVZ esa Li"V :i ryokj ls eYyw ds flj ij pksV ekjus okyh ckr fyf[kr esa iqfyl dks nh xbZ gS rc fQj iqfyl ds }kjk bl ckjs esa vuqla/kku ugha fd;k tkuk iqfyl vf/kdkjh dh ykijokgh dks n'kkZrk gSA gLrxr izdj.k esa izFke lwpuk fjiksVZ esa Li"V :i ls vfHk;qDr xqMMk ds }kjk ryokj ls eYyw ds flj ij pksV igqapkuk fy[kk gqvk gS ftldk leFkZu U;k;ky; dFkuksa esa et:c lk{khx.k us Li"V :i ls fd;k gS rFkk fpfdRlh; lk{; ls Hkh bl rF; dk leFkZu gksrk gS fd eYyw e`rd ds flj ij /kkjnkj gfFk;kj dh pksV FkhA ,slh fLFkfr esa ;fn vuqla/kku vf/kdkjh ds }kjk lgh vuqla/kku ugha fd;k tkos rc dsoy bl vk/kkj ij Li"V p'en'khZ lk{khx.k dh lk{; dks ugha ekuus dks dksbZ dkj.k ugha gksrk% cpkoi{k vr ds }kjk fy[kk x;k ;g rdZ LFkkfir ugha gks ik;k gS fd Qfj;knh i{k us igys ekjihV 'kq: dh gks vkSj xqMMk ds lkFk ekjihV dh gks rc xqMMk us vkRe j{kk esa ydM+h ls eYyw ds lkFk ekjihV dh gksA ;|fi Lora= lk{kh txeksgu flag ih0MCyw0&6 us izfrijh{k.k esa ;g dFku vo'; dj fn;k gS fd mlus mHk;i{k ds e/; ykfB;ka pykrs gq, gh ykfB;ka ns[kh Fkh ds vykok vU; dksbZ gfFk;kj ugha ns[kk fdUrq blus ;g Hkh dFku fd;k gS fd og ugha crk ldrk fd igys ykBh dk okj fdlus fd;k rFkk mls ;g Hkh irk ugha fd fdldh ykBh fdlds yxhA bl izdkj txeksgu flag ih0MCY;w0&6 dh lk{; ds vk/kkj ij fu"d"kZ ugha fudkyk tk ldrk gS fd ykBh ds vykok vU; dksbZ gfFk;kj ugha FkkA gLrxr izdj.k esa vfHk;kstu lk{khx.k dh lk{; ls lUnsg ls ijs ;g lkfcr gksrk gS fd vfHk;qDr xqMMk mQZ jken;ky us ryokj dh eYyw e`rd ds flj ij pksV ekjh Fkh rFkk vU; vfHk;qDrx.k /kwyhyky o txnh'k us et:cx.k jruyky o jkeukjk;.k ds lkFk ykfB;ksa ls ekjihV dh FkhA fpfdRlh; lk{kh Mk0 jktho lksuh ih0MCyw0&10 us ;g dFku fd;k gS fd e`rd dh e`R;q flj dh pksV ds dkj.k dksek esa tkus ds dkj.k gqbZ FkhA bl izdkj fpfdRlh; lk{; ls ;g lkfcr gS fd e`rd eYyw dh flj dh pksV izd`fr ds lkekU; vuqdze esa e`R;q dkfjr djus ds fy, iz;kZIr Fkh] vr% vfHk;qDr xqMMk mQZ jken;ky e`rd eYyw dh gR;k dkfjr djus ds fy, /kkjk 302 Hkk0n0la0 ds vkjksi ds fy, nks"kfl) fd;s tkus ;ksX; gS rFkk vU; vfHk;qDrx.k /kqyhyky o txnh'k et:cx.k jruyky o jkeukjk;.k ds 'kjhj ij dqUn gfFk;kj ls lk/kkj.k pksVsa igqapkus ds vkjksi /kkjk 323 Hkk0n0la0 ds fy, nks"kfl) fd;s tkus ;ksX; gSA vfHk;qDrx.k /kwyhyky o txnh'k /kkjk 302@34 Hkk0n0la0 ds vkjksi ls rFkk vfHk;qDr xqMMk mQZ jken;ky /kkjk 323@34 Hkk0n0la0 ds vkjksi ls nks"keqDr fd;s tkus ;ksX; gSaA** 3. Having held that Section 34 IPC is not applicable, the trial Judge convicted the present appellant Ram Dayal @ Gudda for the offence under Section 302 IPC and his brother Jagdish and father Dhulilal under Section 323 IPC by recording their acquittal for offence under Section 302/34 IPC. Vide a separate order of even date, the trial Judge sentenced the appellant Ram Dayal @ Gudda and his two co-accused as under: U/s 302 IPC- to undergo life imprisonment and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo six months R.I. U/s 323 IPC- to undergo six months S.I. 4. Aggrieved against his conviction and sentence, the appellant Ram Dayal @ Gudda has preferred the present appeal to assail the judgment of conviction and sentence. 5. It will be apposite here to mention that no appeal has been filed by the State to assail the finding of free fight, as a result of which Dhulilal and Jagdish were acquitted for the offence under Section 302/34 IPC. 6. Jagdish and Dhulilal have also preferred no appeal to challenge their conviction and sentence under Section 323 IPC. 7. The criminal proceedings in the present case were set into motion on the basis of written report (Exhibit-P/9) submitted by Ratan Lal (P.W.3) before Bhawani Shankar Sharma (P.W.14), ASI, Police Station Bapcha. 8. Bhawani Shankar Sharma (P.W.14) in the court stated that on 21.12.2006, he was posted as ASI, Police Station Bapcha. On the direction issued by SHO, he had gone to Government Hospital, Chhabra, where the deceased Mallu @ Karan Singh s/o Latoor Lal, after admission had died. His dead body was lying in the mortuary. Bhawani Shankar Sharma (P.W.14) prepared inquest (Exhibit-P/1) and carried various other proceedings regarding taking clothes of the deceased into possession etc. The dead body was handed over to his brother Ratan Lal (P.W.3) vide Supurdginama (Exhibit-P/2). At Government Hospital, Chhabra, Ratan Lal (P.W.3) presented the written report (Exhibit-P/9), which he brought and produced before Lakhan Lal (P.W.12), who was then posted as SHO. On the basis of written report (Exhibit-P/9), a formal FIR (Exhibit- P/17) bearing No. 188/06 was registered at the Police Station Bapcha. 9. In the written report (Exhibit-P/9), Ratan Lal (P.W.3) stated that wife of his brother Ramnarayan without informing him had left the house. On the basis of written report (Exhibit-P/9), a formal FIR (Exhibit- P/17) bearing No. 188/06 was registered at the Police Station Bapcha. 9. In the written report (Exhibit-P/9), Ratan Lal (P.W.3) stated that wife of his brother Ramnarayan without informing him had left the house. Due to this, brother Ramnarayan, Mallu and he while sitting on the Chabutra (raised platform) in front of the house were having conversation. Meanwhile, Dhulilal, his sons Gudda and Jagdish came armed with sword and lathis. Gudda was armed with sword, Dhulilal and Jagdish were armed with lathis. All the three started beating them. Gudda who was armed with sword, caused an injury on the head of brother Mallu with an intention to kill him. Mallu fell on the ground. When Ratan Lal and Ramnarayan ran to save Mallu, Gudda caused injury to Ratan Lal on the head. Dhulilal and Jagdish also caused injuries to Ratan Lal with lathis. Meanwhile, wife of Mallu came to intervene. Then they also caused her injuries. Jagmohan s/o Bahadur Singh and Kailash s/o Nannu Lal also came running at the spot and save us. The condition of Mallu became precarious. Then they proceeded to take Mallu to hospital at Chhabra. On the way to Chhabra, Mallu died. On reaching at Chhabra, doctor saheb declared him dead. It was stated that the occurrence took place on 20.12.2006 at 7 PM. 10. It is to be noted that the occurrence in the present case had taken place on 20.12.2006 at 7:00 PM, whereas the written report was submitted on next day i.e. on 21.12.2006 at 11:15 AM. 11. The short question raised before us is whether the finding of free fight returned by the trial court is justified in the facts and circumstances of the case and if so, whether the offence will remain under Section 302 IPC or is required to be converted into Section 304 Part-I IPC. 12. To examine the finding given by the trial court, we shall first notice the medical evidence and thereafter, shall revert to the eyewitness account and the defence evidence. 13. Dr. Rajeev Soni (P.W.10) on 21.12.2006 being posted as Medical Officer had conducted autopsy on the dead body of Mallu @ Karan Singh and as per Post Mortem Report (Exhibit-P/14) had found the following two injuries on the person of Mallu:- "(i) Incised wound, 5cm x 0.5cm, bone deep, right parietal scalp. 13. Dr. Rajeev Soni (P.W.10) on 21.12.2006 being posted as Medical Officer had conducted autopsy on the dead body of Mallu @ Karan Singh and as per Post Mortem Report (Exhibit-P/14) had found the following two injuries on the person of Mallu:- "(i) Incised wound, 5cm x 0.5cm, bone deep, right parietal scalp. (ii) Swelling 15cm x 10cm, right temporal scalp." 14. In the FIR (Exhibit-P/17), it is alleged that the present appellant had caused solitary blow with the sword on the head of deceased Mallu. Injury No.1 being incised wound corresponds to the role assigned to the appellant Ram Dayal. The injury No.2 has been caused by blunt weapon and hence, cannot be attributed to the present appellant. 15. Dr. Rajeev Soni (P.W.10) on the said date also examined Ramnarayan (P.W.5) and as per Injury Report (Exhibit-P/15) had found following two simple injuries on his person:- "(i) Abrasion, 1cm x 0.5cm, left thumb, simple, blunt. (ii) C/o pain low back, non-visible." 16. This witness (P.W.10) also examined Ratan Lal (P.W.3) and as per Injury Report (Exhibit-P/16) had found following three injuries on his person:- "(i) Swelling, 3cm x 2cm, below right eye. (ii) Lacerated wound, 5cm x 0.25cm, muscle deep, right parietal scalp. (iii) Bruise, 8cm x 5cm, left lower chest." 17. In the present case, all the three accused had also suffered injuries. The defence proved on record injuries suffered by Jagdish vide Injury Report (Exhibit-D/4). Jagdish had suffered following three injuries on his person:- "(i) Lacerated wound, 3cm x 1cm, skin deep, back of right parietal region of head, simple, blunt. (ii) Lacerated wound, 2cm x 1cm, skin deep, lateral side and above left eye, simple, blunt. (iii) Bruise with swelling, 4cm x 2cm, on dorsal surface of right hand, blunt." It is to be noted that the injury No.1 is on the right parietal region, thus, injury No.1 on the person of Jagdish is on the head. 18. The present appellant, Ram Dayal had also suffered two injuries and the same have been noticed in Injury Report (Exhibit-D/5) as under: "(i) Lacerated wound, 2cm x 1cm, skin deep, midparietal region of skull. (ii) Bruise with swelling, 4cm x 2cm, lateral side of left arm region." The injury No.1 is on the mid-parietal region of skull and thus is on the vital portion of the body i.e. head. 19. (ii) Bruise with swelling, 4cm x 2cm, lateral side of left arm region." The injury No.1 is on the mid-parietal region of skull and thus is on the vital portion of the body i.e. head. 19. Dhulilal, father of the present appellant, as per Injury Report (Exhibit-D/6) had suffered following two injuries, even though he had also complain of pain, which is injury No.3:- "(i) Lacerated wound, 3cm x 1cm, skin deep, midparietal region of skull. (ii) Abrasion, 3cm x 2cm, on right knee joint. (iii) C/o pain, left thumb of left hand." Injury No.1 is on the head, being mid-parietal region of the skull. 20. The injured, Ratan Lal (P.W.3) in the court stated that four months before his deposition in the court, at 7:00 PM, he was taking his meals inside the house. Dhulilal, father of the present appellant had sold the wife of Ramnarayan. They have lodged the report. Ramnarayan and Soniya were sitting outside the house. Dhulilal, Jagdish and Gudda accused came. First, they caused an injury with lathi on the person of Ramnarayan. When this witness came outside, they also caused him injuries with lathi. They also caused injury to Mallu. Jagdish and Gudda caused injuries to Mallu. This witness stated that Ram Dayal gave sword blow on his head. Ram Dayal is also called as Gudda. This witness became unconscious and therefore, he is not aware as to who caused injury to Ramnarayan. 21. We may notice that Ratan Lal (P.W.3) has not stated a word regarding the injuries suffered by the three accused. 22. Ramnarayan (P.W.5) in the court stated that he and Mallu were sitting outside the house. They were having conversation regarding the lady. When Gudda, Jagdish and Dhulilal came, Gudda was armed with Sword, Jagdish and Dhulilal were armed with lathis. Gudda gave a sword injury on the head of Mallu. Then everybody faught. The exact words of this witness are ^^fQj lHkh yM+ x;sA** this witness stated that when he intervened to save, he was also caused injuries. 23. We may again highlight that Ramnarayan (P.W.5) has also not stated a word regarding the injuries suffered by the three accused. 24. Jagmohan Singh (P.W.6) an independent witness stated in the court that it was 8:00/9:00 PM, parties were having a fight. This witness was going to take water. This witness stated that both the parties were fighting. 23. We may again highlight that Ramnarayan (P.W.5) has also not stated a word regarding the injuries suffered by the three accused. 24. Jagmohan Singh (P.W.6) an independent witness stated in the court that it was 8:00/9:00 PM, parties were having a fight. This witness was going to take water. This witness stated that both the parties were fighting. The exact words in the testimony of this witness required to be noted are as under:- ^^fQj buds chp ykfB;k] ysfdu ;g irk ugha fd fdldh ykBh fdldsA** In cross-examination, this witness admitted to be correct that both sides were armed with lathis. 25. In view of the admission made by Ramnarayan (P.W.5) the injured brother of the deceased, that everybody fought and the evidence given by Jagmohan Singh (P.W.6) an independent witness, the trial court held that it is case of free fight. We have already reproduced the finding given by the trial court regarding free fight in the opening part of our judgment. 26. Jagdish, the present appellant Ram Dayal and Dhulilal appeared in the witness box as D.W.1, D.W.2 and D.W.3. They produced on record their injury statements as Exhibit-D/4, Exhibit-D/5 and Exhibit-D/6, respectively. They have taken a version that the complainant party had also caused them injuries. 27. Mr. Khushwant the learned counsel appearing for the appellant, has contended that since the complainant party has not explained the injuries suffered by the accused, they have suppressed the origin and genesis of the occurrence. It is contended that all the three accused have suffered a injury on the head, which is a vital portion of the body besides other injuries on their body and thus, it was incumbent for the complainant party to explain the injuries, especially when all the three accused have suffered injuries on parietal region of the head. It is contended that non-explanation of the injuries on the accused is fatal to the prosecution, hence, present appellant be acquitted. 28. Mr. Khushwant, has placed reliance on the case of Lakshmi Singh and Others v. State of Bihar, reported in (1976) 4 Supreme Court Cases 394, wherein the Hon'ble Apex Court has held that if the injuries on the person of accused are not explained, it is to be assumed that prosecution has suppressed genesis and origin of the occurrence and, thus, we should record the acquittal of the accused appellant. The relevant Paras of the aforesaid judgment are as under:- "This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows: In State of Gujarat v. Bai Fatima Criminal Appeal No 67 of 1971 decided on March 19, 1975 :) one of us (Untwalia, J., speaking for the Court, observed as follows: In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case. It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version: (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case." 29. We find that Ramnarayan (P.W.5) rightly stated in the court that ^^fQj lHkh yM+ x;Sa** Jagmohan (P.W.6) has also stated that both the sides caused blows each other with lathis. As already stated, the learned trial court has also returned finding of a free fight. 30. To us, it is not a case of free fight but a case of sudden fight. It is not a case where parties came determined to show strength or to have a pitched battle, but in the present case over a trivial issue a fight had ensued. Thus, the case of the appellant will fall under Exception 4 of Section 300 IPC. 31. 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 S.300, I.P.C., Exception 4. (25). The matter has to be viewed in this way. 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 S.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 S.300, I.P.C., applies with the result that the offence is under S.304 (Part I), I.P.C." 32. 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. 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." 33. Taking totality of the circumstances, we are of the view that the conviction of the accused appellant Ram Dayal who has been substantively convicted for the offence under Section 302 for having given fatal blows to Mallu, the deceased cannot be sustained as it is a good case for conversion of offence. Taking totality of the circumstances, we are of the view that the conviction of the accused appellant Ram Dayal who has been substantively convicted for the offence under Section 302 for having given fatal blows to Mallu, the deceased cannot be sustained as it is a good case for conversion of offence. Considering that the occurrence was sudden affair, without any pre-meditation in which both parties suffered injuries and appellant as per witnesses is attributed single blow on the person of the deceased Mallu @ Karan Singh, we are of the view that the offence qua him will not fall under Section 302 IPC, but under Section 304-I IPC. 34. Consequently, we convert the offence and set aside the sentence of life imprisonment awarded under Section 302 IPC upon Ram Dayal. He is held guilty of offence under Section 304-I IPC and sentenced to undergo ten years R.I. However, we maintain sentence of fine and default clause specified by the trial court. 35. With the above modification, qua offence and sentence noted, qua the appellant, the present appeal stands disposed of. Appeal disposed of.