JUDGMENT : (Delivered by Hon'ble Shashi Kant Gupta, J.) 1. This criminal appeal has been preferred by the appellant Subedar against the judgment and order dated 06.08.1983 passed by the Sessions Judge, Shahjahanpur in Sessions Trial No. 250 of 1983 convicting and sentencing the appellant Subedar to Life Imprisonment under Section 302 IPC. 2. The factual scenario as described by the prosecution is essentially as follows: The accused Leela and Subedar are sons of the accused Lakhan. The complainant Ram Chandra (P.W.1), the accused Lakhan, Chhotey Lal and the deceased Kuber happened to be sons of Zalim. The deceased Kuber and the complainant Ram Chandra (P.W.1) had no wives. Ram Chandra (P.W.1), Chhotey Lal and Kuber were living in a shared household. The accused Lakhan was living in a separate accommodation. 3. The four brothers, namely, Ram Chandra (P.W.1), the deceased Kuber, the accused Lakhan and Chhotey Lal, had one-fourth share in their house. 4. The accused Lakhan had raised a one foot high and half hoot wide wall in the courtyard of the aforesaid house about 6 months prior to the occurrence in question. 5. It was on 14.03.1983, at about 12 noon, when Ram Chandra (PW 1) and the deceased Kuber were measuring their land, claimed half share of the land, which led to a quarrel between them. The accused Lakhan and Leela were armed with lathis while the accused- Subedar was armed with a 'bhala'. The accused-persons assaulted Ram Chandra (PW 1), his 'bhaujai', Smt. Ram Sri (P.W3) and Kuber. The accused Subedar assaulted Kuber by means of a 'bhala' while the other two accused-persons assaulted Ram Chandra (PW 1) and Smt. Ram Sri (PW 3) by means of lathis. They assaulted Smt. Ram Sri (PW 3) when she tried to defend Ram Chandra (PW 1) and the deceased Kuber. Basant Lal (PW 2). Tota Ram and Hardwari also intervened in the matter. 6. Kuber ran towards east while being hit by 'bhala' and fell down in the field of Bhup Ram. The accused chased Kuber, but did not make any further assault when Kuber fell down on the ground. The witnesses also ran behind the accused when they were chasing Kuber. Kuber remained alive for about half an hour before he died after falling down. 7. Ram Chandra (PW1) met Qadir in the bazar and got a report (Ex. The accused chased Kuber, but did not make any further assault when Kuber fell down on the ground. The witnesses also ran behind the accused when they were chasing Kuber. Kuber remained alive for about half an hour before he died after falling down. 7. Ram Chandra (PW1) met Qadir in the bazar and got a report (Ex. Ka1) written from him and signed it after being read over. 8. Ram Chandra (PW 1) lodged a written report Ex. Ka-1 in P.S Tilhar on 14.03.83 at 4.45 PM. Head Constable Shiv Ram (PW 6) prepared the chik FIR (Ex. Ka-9) and registered a case. The injured Ram Chandra (PW 1) was sent to Tilhar Hospital. Dr. A.K. Bapna (PW 8) examined the injuries of Ram Chandra (PW 1) at 5.50 PM on 14.03.83, in Tilhar PHC, and prepared the injury report Ex. Ka-14. 9. S.I. Babu Singh Yadav (PW 4) was present in PS Tilhar when the case was registered. He started investigation and recorded the statement of Ram Chandra (PW 1). Then he reached the place of occurrence at about 8.15 PM and took the dead body of Kuber in his custody. He prepared the inquest report Ex. Ka 2 challan Ex. Ka-3 and diagram Ex. Ka-4 pertaining to the dead body. He kept the dead body in a sealed cover and handed it over to constable Harendra Singh (PW 7) and another for being taken to the mortuary. The Investigating Officer prepared the 'majroobi' letter Ex. Ka-5 about Smt. Ram Sri (PW 3) and sent her to Madnapur hospital. 10. Dr. S.C. Gupta (PW 5) examined the injuries of Smt. Ram Sri (PW 3) on 15.3.83, at 9.30 AM, in Madnapur hospital and prepared the injury report Ex. Ka-8. 11. The Investigating Officer Babu Singh Yadav (PW 4) recorded the statements of Basant Lal (PW 2) Smt. Ram Sri (PW 3) and others and prepared the site-plan Ex. Ka-6 12. Constable Harendra Singh (PW 7) and another identified and carried the dead body of Kuber on 15.03.1983, at 5 PM, in Shahjanpur mortuary whereafter Dr. K.K. Saxena (PW. 9) conducted the post-mortem and prepared the post mortem examination report Ex. Ka-12. 13. On completing the investigation, the Investigating Officer SI Babu Singh Yadav (PW 4) submitted the charge-sheet Ex. Ka-7 on 21.03.1983. 14. K.K. Saxena (PW. 9) conducted the post-mortem and prepared the post mortem examination report Ex. Ka-12. 13. On completing the investigation, the Investigating Officer SI Babu Singh Yadav (PW 4) submitted the charge-sheet Ex. Ka-7 on 21.03.1983. 14. In order to prove its case the prosecution examined 9 witnesses whose statements may be classified as follows: (1) Statement of Ram Chandra (PW1) on point of motive, occurrence and written report Ex.Ka-1. (2) Statement of Basant Lal (PW 2) on point of occurrence. (3) Statement of Smt. Ram Sri (PW 3) on point of motive and occurrence. (4) Statement of SI Babu Singh Yadav (PW 4) on point of investigation. He proved the inquest report Ex. Ka-2, challan Ex. Ka-3, diagram Ex. Ka-4, 'majroobi' letter Ex. Ka-5 site-plan Ex. Ka-6 and charge sheet Ex. ka-7. (5) Statement of Dr. S.C. Gupta (PW 5) on point of injury report Ex. Ka-8 of Smt. Ram Sri (PW.3) (6) Statement of Head Constable Shiv Ram (PW 7) on point of chik report Ex. Ka-9 and GD's copy Ex. Ka-10, (formal in nature). (7) Statement of constable Harendra Singh (PW 7) on point of taking the dead-body to the mortuary, (formal in nature). (8) Statement of Dr. A.K. Bapna (PW 8) on point of injury report Ex. Ka-11 of Ram Chandra (PW 1). (9) Statement of Dr. K.K. Saxena (PW 9) qua post mortem examination report Ex. Ka-12. 15. The accused Subedar denied the correctness of the prosecution case and claimed that he was not present at the scene of occurrence and was falsely implicated due to enmity. 16. The accused did not examine any witness in defence. 17. Ram Chandra (PW 1) had suffered the following injury on his person: Lacerated wound 5 c.m x 0.5 c.m x bone deep on the right side of head, just 10 c.m above the right ear. Blood was coming from the wound. The wound was longitudinal. 18. Smt. Ram Sri (PW 3) suffered the following injuries on her person:- (1) Lacerated wound ½ cm x ½ cm over left side of forehead, 3 c.m above center of left eye-brow. Clotted blood was present. (2) Complained of pain in left forearm. 19. Blood was coming from the wound. The wound was longitudinal. 18. Smt. Ram Sri (PW 3) suffered the following injuries on her person:- (1) Lacerated wound ½ cm x ½ cm over left side of forehead, 3 c.m above center of left eye-brow. Clotted blood was present. (2) Complained of pain in left forearm. 19. The deceased Kuber sustained the following ante-mortem injuries:- (1) Penetrating injury 0.8 cm x 0.8 cm x chest cavity deep on the left side of chest, 1 c.m lateral to the left nipple on 4 o'clock position. Margins were inverted. (2) Penetrating injury 0.3 c.m x 3 cm x muscle deep on the left side of abdomen, 12 c.m above middle of right illiac crest. Margins were inverted. 20. On internal examination subcutaneous tissues and muscles were found congested and lacerated under injury no.1 The pleura was lacerated under injury no.1. Lungs were lacerated under injury no.1. The left ventricle was lacerated under injury no.1 There was 800 ml of fluid blood in the left side of thoracic cavity. Subcutaneous tissues were found congested under injury no.2 in the abdomen The stomach was empty and there was faecal matter in the large intestines. The death had occurred due to shock and hemorrhage as a result of the ante-mortem injuries. 21. Ram Chandra (PW1) stated that he and the deceased Kuber were measuring the land of their house, upon which the accused Lakhan protested and claimed half of the land, which led to a scuffle and consequent murder. Lakhan had raised one foot high wall in the court-yard about 6 months prior to the occurrence in question. A private 'rasta' ran between the houses of Hardwari and Tota Ram. Lakhan resided towards south in the house of the parties while the rest of the three brothers and their families resided in the northern portion. 22. Basant Lal also stated that the quarrel and the consequent murder of the deceased Kuber was because of the fact that Lakhan wanted half the land of the house. 23. Lakhan resided towards south in the house of the parties while the rest of the three brothers and their families resided in the northern portion. 22. Basant Lal also stated that the quarrel and the consequent murder of the deceased Kuber was because of the fact that Lakhan wanted half the land of the house. 23. Ram Chandra (PW 1 ) stated that on the day of the occurrence, at about 12 noon, when the quarrel started at the time of measuring the land, Lakhan and Leela were armed with lathis and Subedar was armed with a 'bhala', they started beating him when Smt. Ram Sri (PW 3) intervened, she was also assaulted by means of a lathi, the accused Subedar assaulted the deceased Kuber by means of 'bhala'. Having been assaulted Kuber ran towards east but fell down at some distance and died after about half an hour of receiving the injuries. 24. The Trial Court after hearing the parties, vide impugned judgment and order, convicted and sentenced the appellant Subedar to life imprisonment under Section 302 IPC. The co-accused namely Lakhan and Leela were convicted and sentenced for one month's simple imprisonment under Section 323 IPC read with Section 34 IPC. 25. Learned counsel for the appellant has submitted that the appellant Subedar can not be held guilty for the commission of offence punishable under Section 302 IPC and at the most the offence in question would fall under Exception 4 of Section 300 IPC as the occurrence had taken place without pre-meditation, in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Admittedly, the appellant Subedar is shown to have inflicted only one fatal blow on the person of the deceased which is neither cruel nor unusual to deprive him of the benefit of the aforesaid exception and more over the appellant did not inflict any blow after the victim had fallen down on the ground. In support of his contention, learned counsel for the appellant has placed reliance upon the decision of the Hon'ble Apex Court on the cases of Sukhbir Singh versus State of Haryana, AIR 2002 SC 1168 and of Ghapoo Yadav versus State of M.P, AIR 2003 SC 1620 . 26. In support of his contention, learned counsel for the appellant has placed reliance upon the decision of the Hon'ble Apex Court on the cases of Sukhbir Singh versus State of Haryana, AIR 2002 SC 1168 and of Ghapoo Yadav versus State of M.P, AIR 2003 SC 1620 . 26. Per contra, learned A.G.A has supported the case of the prosecution and has stated that the judgment and order passed by the trial court convicting the accused appellant is in accordance with law and the Exception 4 of Section 300 IPC is not applicable in the present matter. He further submitted that the accused appellant Subedar intentionally caused fatal blow which was sufficient in the ordinary course of nature to cause death of the deceased Kuber. 27. Heard Sri Satish Trivedi, Senior Advocate assisted by Sri Ajay Kumar Pandey, learned counsel for the appellant and Sri Rajeev Gupta, Sri S.N. Tripathi and Sri Ram Naresh Tripathi, learned A.G.A appearing on behalf of the State. 28. It is not disputed that Ram Chandra (PW 1), the deceased Kuber, the accused Lakhan and Chhotey Lal were the real brothers and they owned a house. The accused Subedar and Leela are sons of Lakhan. Ram Chandra (PW 1) Chhotey Lal, and the deceased Kuber were living together in a shared house hold while Lakhan had a separate residence in that house. Ram Chandra (PW1) and the deceased Kuber had no wives. There has been a one foot high and half foot wide wall in the court-yard of the aforesaid house since prior to the occurrence in question. 29. The accused claimed that they had a half share in the house. There were four brothers and apparently the accused Lakhan and his sons were to have on fourth share in the house. The three brothers remained in one portion while the co accused Lakhan and his dependents occupied another portion. 30. Ram Chandra (PW 1 ) has stated that on the day of the occurrence, at about 12 noon, when the quarrel started at the time of measuring the land, Lakhan and Leela were armed with lathis and Subedar was armed with a 'bhala', with which they attacked him when Smt. Ram Sri (PW 3) intervened, she was also assaulted by means of a lathi, the accused Subedar assaulted the deceased Kuber by means of 'bhala'. Having been assaulted Kuber ran towards east and fell down at some distance. He was followed by the witnesses including the complainant and was also chased by the appellant. Kuber died after half an hour of receiving the injuries. 31. Learned counsel for the appellant mainly contended that on the facts and circumstances of the case, the offence in question would fall under exception 4 of Section 300 IPC and not under Section 302 IPC. Thus, this Court in view of the facts and circumstances of the case and the submission raised by the learned counsel for the parties has to scrutinize whether the provisions of exception 4 of Section 300 IPC would be applicable or the alleged offence committed by the accused appellant would fall within ambit of murder. 32. Admittedly, the facts and circumstances of the case clearly suggests that the informant side and accused appellant are close relatives and are living in the same vicinity. The record of the case further suggests that there was no earlier enmity or motive although the relations between the parties to some extent were not cordial due to the dispute relating to the house. On the fateful day, when the informant side was taking measurement of the house, there was heated exchange followed by a quarrel between the informant side and the accused appellant, which provoked the accused side to inflict injuries on the informant side. The main allegation against the accused appellant is that he inflicted fatal injury on the deceased Kuber. The injuries caused by the accused appellant has not been disputed and has been admitted. The post mortem report of the deceased has been duly proved by the Doctor. Out of the two injuries, injury no. 1 proved to be fatal and the injury no. 2 caused on the left side of the abdomen was simple in nature. It has not been disputed by the prosecution that though the accused appellant has chased the deceased Kuber but there is no allegation that he inflicted any injury when the deceased fell on the ground. 33. 1 proved to be fatal and the injury no. 2 caused on the left side of the abdomen was simple in nature. It has not been disputed by the prosecution that though the accused appellant has chased the deceased Kuber but there is no allegation that he inflicted any injury when the deceased fell on the ground. 33. Learned counsel for the appellant vehemently argued that after the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position and thus it can not be said that the appellant had taken undue advantage or acted in cruel or unusual manner. The circumstances of the case clearly suggests that in the heat of passion upon a sudden quarrel followed by a fight, the appellant who was armed with bhala caused injuries at random and thus did not act in a cruel or unusual manner. At this stage, it is very useful to refer to the case of Sukhbir Singh Vs. State of Haryana (Supra), where in paragraph nos. 19, 20 and 21, the Apex Court has held as follow:- " The High Court has also found that the occurrence had taken place upon a sudden quarrel but as the appellant was found to have acted in a cruel and unusual manner, he was not given the benefit of such exception. For holding him to have acted in a cruel and unusual manner, the High Court relied upon the number of injuries and their location on the body of the deceased. In the absence of the existence of common object, the appellant cannot be held responsible for the other injuries caused to the person of the deceased. He is proved to have inflicted two blows on the person of the deceased which were sufficient in the ordinary course of nature to cause his death. The infliction of the injuries and their nature proves the intention of the appellant but causing of such two injuries cannot be termed to be either in a cruel unusual manner. All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 IPC. The infliction of the injuries and their nature proves the intention of the appellant but causing of such two injuries cannot be termed to be either in a cruel unusual manner. All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with Bhala caused injuries at random and thus did not act in a cruel or unusual manner. To support the case of the prosecution, learned counsel for the State of Haryana relied upon Virender versus State (NCT) of Delhi (IV (2000) CCR 266 (SC). We have perused the aforesaid judgment and find it totally distinguishable because in that case nothing was shown to the court that the occurrence had taken place in a sudden fight and in the heat of passion. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) of the IPC. The findings of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) of the IPC and sentenced to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs.5000/-. In default of payment of fine, he shall undergo further Rigorous Imprisonment for one year." 34. In the instant case, concededly, there was no enmity between the parties and there is no allegation of the prosecution that before the occurrence, the appellant and others had pre-meditated. In default of payment of fine, he shall undergo further Rigorous Imprisonment for one year." 34. In the instant case, concededly, there was no enmity between the parties and there is no allegation of the prosecution that before the occurrence, the appellant and others had pre-meditated. In the case of Sukhbir Singh (Supra) the accused after exchange of abuses went away declaring that a lesson would be taught to them. After sometime all the 9 accused persons came at the spot and were carrying Bhalas, Gandasas and Jailwas. Sukhbir Singh challenged Lachhman to come out so that a lesson could be taught to him. When Lachhman proceeded towards the door of his house saying that the matter should not be aggravated and as soon as he reached the door of his house, accused Sukhbir Singh gave two thrust blows with his bhala on the upper right portion of his chest. In those circumstances, the Apex Court held the accused Sukhbir Singh guilty of merely culpable homicide not amounting to murder and conviction under Section 302 IPC was set aside. 35. Learned counsel for the appellant has further referred to the decision of the Hon'ble Apex Court in the case of Ghapoo Yadav Versus State of MP (Supra), wherein in paragraphs 10 and 11, the Apex Court has held as follows: "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 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. 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. 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 requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. 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'. In the case at hand, out of the seven injuries, only injury No.2 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The infliction of the injuries, and their nature proves the intention of the accused appellants, but causing of such injuries cannot be termed to be either in a cruel or unusual manner for not availing the benefit of Exception 4 to Section 300 IPC. After the injuries were inflicted the injured has fallen down, but there is no material to show that thereafter any injury was inflicted when he was in helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physicals. It is not the case of the prosecution that the accused appellants had come prepared and armed for attacking the deceased. The previous disputes over land do not appear to have assumed characteristics of physical combat. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in cruel or unusual manner. That being so, Exception 4 to Section 300 IPC is clearly applicable. The fact situation bears great similarity to those in Sukhbir Singh Versus State of Haryana ( 2002 (3) SCC 327 ). Appellants are to be convicted under Section 304 Part I, IPC and custodial sentence of 10 years and fine as was imposed by the Trial Court would meet the ends of justice. The appeal is allowed to the extent indicated above. 36. Thus in the aforesaid case, the Hon'ble Apex Court clearly observed that out of the seven injuries, only injury No.2 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The appeal is allowed to the extent indicated above. 36. Thus in the aforesaid case, the Hon'ble Apex Court clearly observed that out of the seven injuries, only injury No.2 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The Apex Court further held that the infliction of the injuries, and their nature proves the intention of the accused appellants, but causing of such injuries cannot be termed to be either in a cruel or unusual manner for not availing the benefit of Exception 4 to Section 300 IPC. 37. The facts and circumstances of the present case clearly suggests that the injuries sustained by the deceased were in course of sudden quarrel, without pre-meditation and without cruel intents. It may also be noted that the alleged offence was committed in the year 1983 and now more than 32 years have been passed after commission of the alleged offence. 38. Keeping in view the facts and circumstances of the case and more particularly the decisions of the Apex Court on the legal position referred Supra, we are of the opinion that the case of the appellant Subedar is covered by the principles laid down by the Apex Court in the cases of Sukhbir Singh Vs. State of Haryana (Supra) and Ghapoo Yadav Versus State of M.P. (Supra). Therefore, the case of the appellant is covered under Exception 4 of Section 300 IPC and is punishable under Section 304 (Part I) of the IPC. The finding recorded by the Trial Court in respect of conviction and sentence of the appellant Subedar under Section 302 IPC is altered and modified to Section 304 (Part 1) of IPC. The findings of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) of the IPC and sentenced to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs.5000/-. In default of payment of fine, he shall undergo further Rigorous Imprisonment for one year. 39. The Criminal Appeal is partly allowed. In default of payment of fine, he shall undergo further Rigorous Imprisonment for one year. 39. The Criminal Appeal is partly allowed. The Bail Bonds of appellant Subedar stand cancelled and is directed to be taken into custody forthwith for serving out the remaining part of his sentence. 40. Copy of this judgment along with lower Court record be sent immediately to the concerned Sessions Judge and Chief Judicial Magistrate for compliance. Compliance report be also sent to this Court. ——————