JUDGMENT : KANWALJIT SINGH AHLUWALIA, J. 1. On the day of Moharram i.e. on 8.1.2009, at 2:00 PM, Tajia procession was passing through Loharo Wali Gali (Street of Blacksmiths) in a small town, Narena, when accused party purportedly attacked the complainant party. Due to injuries caused in the occurrence, Mohd. Hussain had died. 2. Abdul Rajjak (P.W.1), Pappu (P.W.2), Aamin (P.W.4), Saddiqui (P.W.6) and Gulab Bano (P.W.8) in the occurrence received injuries. On the side of accused, Roshan Khan, Jamaluddin, Misruddin and Yasin Mohd. had also received injuries. Yasin Mohd. was not sent to trial along with three other accused. The prosecution had sent for trial Roshan Khan, Chhotu Khan, Salim, Nijam @ Nijamuddin, Hakim, Jamaluddin and Misruddin. During trial, Chhotu Khan died. The trial Judge vide impugned judgment dated 12.2.2015, convicted all the appellants namely, Roshan Khan, Salim, Nijam @ Nijamuddin, Hakim, Jamaluddin and Misruddin for the offences under Sections 147, 148, 323, 341, 326 and 302 read with Section 149 IPC. Vide separate order of even date, the trial court sentenced the appellants as under:- U/s. 147 IPC- to undergo one year SI. U/s. 148 IPC- to undergo two years SI. U/s. 323 IPC- to undergo one year SI U/s. 341 IPC- to undergo one month SI U/s. 326 IPC- to undergo ten years SI and to pay a fine of Rs.1,000/- each, in default of payment of fine to further undergo one month SI. U/s. 302 read with Section 149 IPC- to undergo life imprisonment and to pay a fine of Rs.5,000/- each, in default of payment of fine to further undergo two months SI. All the sentences were ordered to run concurrently. 3. Aggrieved against their conviction and sentence, Jamaluddin and his brother Misruddin have filed D.B. Criminal Appeal No.166/2015, Roshan Khan son of Shri Ghasi Khan, Nizam @ Nijamuddin son of Alladin and Hakim son of Alladin have instituted D.B. Criminal Appeal No.208/2015. It may be noted here that Nizam @ Nijamuddin and Hakim are brothers. Salim son of Chotu Khan has preferred D.B. Criminal Appeal No.209/2015. In all the three appeals, the appellants have prayed that the conviction pronounced and sentence awarded upon them by the trial court be set aside. 4. Since in all the three appeals, common judgment has been assailed by the appellants, we shall decide these three appeals by this common judgment. 5. In all the three appeals, the appellants have prayed that the conviction pronounced and sentence awarded upon them by the trial court be set aside. 4. Since in all the three appeals, common judgment has been assailed by the appellants, we shall decide these three appeals by this common judgment. 5. The criminal proceedings in the present case were set into motion on the basis of statement (Exhibit-P/1) made by Abdul Rajjak (P.W.1) before S.I., Sube Singh (P.W.33). 6. On 8.1.2009, Sube Singh (P.W.33) was posted as SI, at Police Station Dudu. On that day, an information was received that in town Narena, a fight had taken place and injured have reached Community Health Center, Dudu. On the instructions received from the Additional Superintendent of Police, SI Sube Singh (P.W.33) reached Community Health Center, Dudu. Sube Singh submitted an application for medico-legal examination of the injured and thereafter, had recorded the statement of Abdul Rajjak (P.W.1), on the basis of which, he came to conclusion that offences under Sections 147, 148, 149, 323 and 341 IPC are made out. 7. We may notice here the opening line of the examination-in- chief of Sube Singh (P.W.33), as under:- ^^eSa fnukad 08-01-2009 dks iqfyl Fkkuk nwnw ij ,lŒvkbZŒ ds in ij inLFkkfir Fkk ml fnu ujsuk esa ekjihV gksdj et:c lhŒ,pŒlhŒ nwnw vk, Fks esjs dks Jheku~ vfrfjDr iqfyl v/kh{kd nwnw us lhŒ,pŒlhŒ vLirky fHktok;k FkkA** The statement made by Abdul Rajjak (P.W.1) when translated into English, reads as under:- "Statement of Shri Abdul Rajjak son of Nathu Khan, by caste Deshwali Musalmana, aged 40 years, resident of Barbaro Ki Dhani, Tan Narena, Police Station Narena, District Jaipur (Rural). Stated that I am doing labour work. Today on 8.1.2009, at about 2:00 PM, we along with family were standing in Loharo Ka Mohala, Narena during passing of the Moharram procession. At that time, about 2000 women and men were present along with children. The Tajia was going from Chowk of Kumhar (porter) towards Mohalla of Loharo. Stated that I am doing labour work. Today on 8.1.2009, at about 2:00 PM, we along with family were standing in Loharo Ka Mohala, Narena during passing of the Moharram procession. At that time, about 2000 women and men were present along with children. The Tajia was going from Chowk of Kumhar (porter) towards Mohalla of Loharo. Then from the crowd, Chhotu Khan son of Ghasi Khan, resident of Narena and his three sons namely Baddu, Sikander, Salim and brother Roshan Khan, Nizam son of Aladeen, Kalu Khan son of Ghasi Khan, Bahadur son of Kalu Khan, Rahman son of Kalu Khan, Islam son of Kalu Khan, Sultan Khan son of Ghasi Khan, Masru son of Sultan, Jamal son of Sultan, Aladdin son of Ghasi Khan, Hakim son of Aladdin, Meer Khan son of Gulab Khan, resident of Barbaro Ki Dhani, Narena came. They were armed with lathis, hockies and swords and they immediately, started beating. Due to which I, Hussain, Aamin, Saddiq, Pappu, Smt. Gulab w/o Kamruddin received injuries on various parts of the body. Yasin son of Nizam also suffered injuries when he intervened to save. In the beating, Bhanwar son of Sawai Khan also received injuries. Had the people not intervened, they would have killed us. Three months ago, regarding the dispute of Bada, we had an altercation. The matter was compromised. On the day of festival, due to old grudge they have given beating. Shri Hussain and Aamin have been referred to Jaipur. We in jeeps have come from Narena to Dudu for treatment. Out of deceit, they have given beating to us. Hussain due to sword blow given by Jamaluddin has suffered injuries on the head and lips." The following pedigree table will depict the relations of the accused:- 8. In the statement made before police, Abdul Rajjak (P.W.1) had named sixteen persons of one family as accused. 9. We may notice here that on the intervening night of 15.1.2009 and 16.1.2009, at 12:10 AM, Mohammad Hussain had expired while admitted at SMS Hospital, Jaipur and his autopsy was performed on 16.1.2009 at 11:15 AM (vide Exhibit-P/40) by Dr. Priyanka Sharma (P.W.31). After the death of Mohd. Hussain, offence under Section 302 IPC was added. 10. Before we proceed to notice testimony of the witnesses, it will be appropriate for us to take note of medical evidence. 11. Mohd. Priyanka Sharma (P.W.31). After the death of Mohd. Hussain, offence under Section 302 IPC was added. 10. Before we proceed to notice testimony of the witnesses, it will be appropriate for us to take note of medical evidence. 11. Mohd. Hussain in injured condition was brought at Dudu Hospital. Doctor at Dudu Hospital had given first aid to Mohd. Hussain and he was immediately referred to SMS Hospital, Jaipur, where he reached on 8.1.2009 at 5:10 PM. At that time, general condition of Mohd.Hussain was poor. He was not conscious but was oriented to space only upon touch, his systolic pressure was not recordable. Mohd. Hussain was immediately operated in order to save his life. Thus, no injury report was prepared. 12. On 12.1.2009, after the operation was performed, injury report (Exhibit-P/6) of Mohd. Hussain was prepared. In injury report (Exhibit-P/6), following injuries were noted:- "(i) Post operative bandage over scalp with both eyes black eye. (ii) Stitched wound 3.5 cm left side Nose with dry clotted blood with Nasal packing with diffuse swelling. (iii) Lacerated wound 1.5 x 1 x M Deep, upper lip, Inner aspect with dry black clotted blood with sign of inflamation present-simple blunt. (iv) Abraded bruise 10 x 8 cm left shoulder with left scapular region, brownish in colour with diffuse swelling. (v) Abrasion 3cm left thigh anterior aspect M/3 with brownish scab formation- simple, blunt. (vi) Stitched wound 7 cm, right leg anterior U/2 with an abrasion 3cm upper end of stitched with brownish colour. (vii) Slight distorsion of abdomen." 13. We may notice here that in the injury report (Exhibit-P/6), due to post operative bandage, stitches on the head were noticed. As stated earlier, on the intervening night of 15th and 16th of January, 2009, at 12:10 AM, Mohd. Hussain had died and his autopsy was conducted. In post mortem report (Exhibit-P/40), prepared by Dr. Priyanka Sharma (P.W.31), besides injuries noticed in the injury report (Exhibit-P/6), it has been noted that after dissection of skull, sub scalp haematoma was present in left fronto parietal temporal region. There was bone gap of 10 x 7 cm, on left temporo fronto parietal region with bone piece of same size. Dura was intact. On dissection brain was found soft in consistency. Blood clot was present in left lateral ventricle. 14. As per opinion of Dr. There was bone gap of 10 x 7 cm, on left temporo fronto parietal region with bone piece of same size. Dura was intact. On dissection brain was found soft in consistency. Blood clot was present in left lateral ventricle. 14. As per opinion of Dr. Priyanka Sharma (P.W.31), cause of death was Coma as a result of ante mortem head injury, which was sufficient to cause death in ordinary course of nature. 15. On 8.1.2009, at about 4:00 PM, Dr. Durga Prasad Gupta (P.W.11) being posted at Government Hospital, Narena, had medicolegally examined Abdul Rajjak (P.W.1) and as per injury report (Exhibit- P/3), he had found one red bruise 2cm x 2cm on right tibial tuberosity. The said injury was declared simple in nature. 16. Dr. Durga Prasad Gupta (P.W.11) on the said date at 4:30 PM, had also examined Pappu Khan Bhati and in the injury report (Exhibit-P/4) had found following three injuries on his person:- (i) Oblique lacerated wound, 2.0x0.2cm, x skin deep at medial aspect of distal phalanx of right thumb, simple, blunt. (ii) Oblique incised wound 5.5cm x 0.5cm, x 0.5cm, deep at postero lateral aspect of right hand and 2nd metacarpal bone area, simple, sharp edged. (iii) Multiple abrasions on patella of right knee, simple, blunt. 17. After X-ray examination, injury no.2 being fracture of right metacarpal bone was declared grievous. Other two injuries were found simple in nature. 18. Dr. Durga Prasad Gupta (P.W.11) on 8.1.2009, at 4:10 PM, had examined, Aamin (P.W.4) and in the injury report (Exhibit-P/5) had found following five injuries on his person: "(i) Oblique lacerated wound, 1cm x 0.2cm, x skin deep, 0.5cm lateral from left ala of nose, simple, blunt. (ii) Horizontal lacerated wound 1cm x 0.2cm, x skin deep at lateral can this of left eye, simple, blunt. (iii) Vertical lacerated wound 1cm x 0.2cm x skin deep lateral end of left upper eyelid, simple, blunt. (iv) Horizontal abrasion 2.5cm x 0.5cm, just above left eyebrow, blunt. (v) Vertical lacerated wound 2.5cm x 0.3cm, x skin deep, right temporal-frontal bone area of scalp, blunt" All the injuries were declared simple in nature and caused by blunt weapon. 19. Dr. (iv) Horizontal abrasion 2.5cm x 0.5cm, just above left eyebrow, blunt. (v) Vertical lacerated wound 2.5cm x 0.3cm, x skin deep, right temporal-frontal bone area of scalp, blunt" All the injuries were declared simple in nature and caused by blunt weapon. 19. Dr. Durga Prasad Gupta (P.W.11) on the same day at 4:20 PM, had examined Saddique (P.W.6) and in the injury report (Exhibit- P/9) had found following two injuries:- (i) (Crescent) shaped lacerated wound 3cm x 0.4 cm x bone deep, 2.5 cm, supero-left lateral from occipital protuberance, simple, blunt. (ii) C/o pain right calf but externally no injury detected. We may notice that injury no.1 on the head has been found simple and injury no.2 was complains of pain. 20. Dr. Durga Prasad Gupta (P.W.11) on the same day at 4:35 PM, had examined Gulab Bano and in injury report (Exhibit-P/11) noted following injury:- (i) Oblique to horizontal red bruise 12 cm x 2cm at right scapula, crossing spine and reaching posterior aspect of right shoulder, simple, blunt. The said injury was also declared simple in nature. 21. We may notice here that injuries on the person of Abdul Rajjak (P.W.1), Pappu Khan (P.W.2), Aamin (P.W.4), Saddique (P.W.6) and Gulab Bano (P.W.8), have been caused with blunt weapon, except injury no.2 on the person of Pappu Khan (P.W.2), which is fracture of finger of the right hand, all injuries on the person of the complainant party have been found simple in nature. Thus, on the side of the complainant party, one injury on the head of deceased Mohd. Hussain attributed to Jamaluddin has proved fatal. Rest of all the injuries, except injury no.2 on the person of Pappu Khan (P.W.2) have been declared simple in nature. 22. We may notice here that the trial Judge has exhibited on record injury reports of Roshan Khan as Exhibit-D/7, Jamaluddin as Exhibit-D/8, Misruddin as Exhibit-D/9 and Yasin Mohd. (P.W.26) as Exhibit-D/10. 23. On the person of accused Roshan Khan, as per injury report (Exhibit-D/7) following injuries have been noted:- (i) Horizontal red bruise, 16 cm x 2 cm at left lateral aspect of chest at 7th rib region, simple, blunt. (ii) Oblique red bruise, 17 cm x 2 cm at postero lateral aspect of left side of abdomen. Abrasion 1.5 cm x 1.5 cm at lower end of bruise present, simple, blunt. (ii) Oblique red bruise, 17 cm x 2 cm at postero lateral aspect of left side of abdomen. Abrasion 1.5 cm x 1.5 cm at lower end of bruise present, simple, blunt. (iii) Red bruise with abrasion 2.5 cm x 2.5 cm, 2 cm above right tibial tuberosity, simple, blunt. (iv) Red bruise with abrasion 1.5 cm x 1.5 cm at medial border of patella of right knee, simple, blunt. (v) Red bruise 3 cm x 3 cm with central abrasion, 1.5 cm x 1.5 cm at zygomatic bone area of left side face, blunt. (vi) Red bruise 4 cm x 3 cm at right eyebrow with central abrasion 0.5 cm x 0.5 cm, blunt. (vii) Red bruise 5 cm x 5 cm, 7 cm postero- medial from right parietal eminence, blunt. We reproduce the injuries suffered by accused Jamaluddin in injury report (Exhibit-D/8), as under:- (i) Incised wound (diagram of thumb as given in injury report) postero lateral aspect of interphalanjeal joint of left thumb. Size 3 cm x 0.3 cm x skin to muscle deep, simple, sharp edged. (ii) Oblique incised wound 3 cm x 0.4 cm x skin deep at postero aspect of left 2nd Metacarpophalangeal joint, simple, sharp edged. (iii) Oblique incised wound 2 cm x 0.3cm x skin deep posterior aspect of proximal interphalangeal joint of left middle finger just distal to metacarpophalangeal joint, simple, sharp edged. (iv) Oblique incised wound 0.6 cm x 0.2 cm x skin deep posterior aspect of metacarpophalangeal joint of left ring finger, simple, sharp edged. (v) Abrasion 1cm x 0.5 cm, posterior aspect of proximal inter phalangeal joint of right middle finger, simple, blunt. (vi) Abrasion 1cm x 0.3cm at posterior aspect of distal interphalangeal joint of right little finger, simple, blunt. Misruddin had suffered three injuries and in the injury report (Exhibit-D/9), same have been noted as under:- (i) Antero posterior lacerated wound, 7.5 cm x 1cm, x bone deep at midline of scalp on parietal bone area between two parietal eminence., blunt. (ii) lacerated oblique wound 5.5. cm x 1cm x bone deep, 7 cm, supero left lateral from occipital protuberance, blunt. (iii) Oblique red bruise 13cm x 2cm, start from medial border of left scapular to T7 spine. Abrasion at upper end (at medial border of left scapula) of size 2cm x 2cm present, simple, blunt. (ii) lacerated oblique wound 5.5. cm x 1cm x bone deep, 7 cm, supero left lateral from occipital protuberance, blunt. (iii) Oblique red bruise 13cm x 2cm, start from medial border of left scapular to T7 spine. Abrasion at upper end (at medial border of left scapula) of size 2cm x 2cm present, simple, blunt. On the person of accused Yasin Mohd., as per injury report (Exhibit-D/10) following injury has been noted:- (i) Oblique lacerated wound 2.5cm x 0.3cm x 0.3 cm deep, 5 cm medial from right parietal eminence, simple, blunt. Having noted the medical evidence, before we proceed to take note of the prosecution evidence, we may reproduce true translation of the cross version as contained in FIR (Exhibit-D/11) bearing No.12 dated 8.1.2009, registered at Police Station Narena, as under:- "To, SHO, Police Station Narena, Jaipur (Rural). Subject- Regarding sudden attack in Moharram procession. Sir, in the context of above noted subject, it is stated that today on 8.1.2009, in Tajia procession, a fight had taken place with Usman Milawat and Hussain Fauji and other side with Rodu Khan and his family members. Suddenly, Hussain son of Masru Khan Rajjak, Ramjan, Aamin, Wasim son of Nathu Khan, Kamruddin Ibrahim, son of Shakoor, Satar Khan son of Chhotu Khan, Sultan, Yusuf son of Satar Khan Bhanwar Khan, Pappu Khan son of Sawai Khan, Saddique son of Bhanwar Khan opened attack Masruddin, Jamal son of Sultan Khan, Roshan Khan, Ghasi Khan who were standing in the crowd were injured. Ramjan, Rajjak, Satar and Bhanwar Khan had caused injury on the head of Masruddin with iron rod and Parchi, and Roshan Khan was caused injuries in ribs, hands and legs, after throwing him on ground, he was seriously injured. Kamruddin had caused injury with sword on hand of Jamal Khan and had cut his fingers. In the attack, Yaseen son of Nizam Khan Guj was also injured. He was caused injuries by Usman Milawat and his brother Subrati. Sir, it is known to you that Hussain Fauji and his family are involved in dacoity and they are involved in murder and they are history sheeters. They have intentionally caused injuries on our persons. It is requested that after registering the case, legal action be taken. Applicant Ghasi Khan Silar, resident of Narena. Sir, it is known to you that Hussain Fauji and his family are involved in dacoity and they are involved in murder and they are history sheeters. They have intentionally caused injuries on our persons. It is requested that after registering the case, legal action be taken. Applicant Ghasi Khan Silar, resident of Narena. Police Proceedings – it is attested that this report is submitted by Chhotu Khan son of Ghasi Khan, by caste Musalman, aged 50 years, resident of Narena, Police Station Narena, District Jaipur. Applications for complainant namely Shri Misruddin, Shri Jamaluddin, Shri Roshan Khan, Shri Abdul Hakim were given separately." 24. We may notice here that the above cross version was also recorded at the same time when the statement (Exhibit-P/1) of Abdul Rajjak (P.W.1) was recorded by the investigating officer. Therefore, injured from the accused party had also reached hospital before arrival of the complainant party in the police station. It will be pertinent for us to highlight here that in the statement made by Abdul Rajjak (P.W.1), leading to registration of case Exhibit-P/41, no mention has been made regarding injuries suffered by the accused party. 25. The prosecution examined Abdul Rajjak (P.W.1) in the court who improved the version to say that Jamaluddin had caused sword blow on the face of deceased Mohd. Hussain and he caused second blow on the head of Mohd. Hussain. In cross-examination this witness admitted as under:- ^^;g lgh gS fd >xM+s esa eqyfteku ds 'kjhj ij Hkh pksVsa vkbZ gSa vkSj bl ckcr dsl ,QŒvkbZŒvkjŒ ntZ gqbZ FkhA ;g ckr lgh gS fd de:nhu gekjs lkFk ekStwn FkkA** Pappu Khan (P.W.2) stated that they all were watching Moharram procession. He along with his wife, son and daughter had come. This witness admitted to be correct that Mohd. Hussain met them in the procession and when Mohd. Hussain met them, nobody else was with him. ^^;g ckr lgh gS fd eSa gqlSu ls tqywl esa feyk FkkA tc eSa gqlSu ls tqywl esa feyk rks mlds lkFk vkSj dksbZ ugha FkkA** Pappu Khan (P.W.2) had also stated as under: ^^ge ?kVuk ls igys 4&5 yksx cSBdj dqEgkjksa ds pkSd esa ckrs dj jgs FksA tc ge cSBs Fks rHkh ?kVuk 'kq: gks xbZ FkhA tc >xM+k 'kq: gqvk ml le; esa [kM+k FkkA** Jamal (P.W.3), in the court also admitted that the dispute had started between Chhotu Khan and Mohd. Hussain. This witness stated in the court as under:- ^^ml eksgjZe esa >xM+k NksVs[kku vkSj gqlSu ds lkFk gqvk FkkA** Saddique (P.W.6) in the court denied that they had caused injuries to the accused party. Hameed (P.W.7) in the court stated that Chhotu Khan had picked up the fight. Gulab Bano (P.W.8) in the court stated that she had disclosed to the police as to how the accused party had received injuries. This witness stated in the court as under:- ^^eSaus iqfyl dks c;ku fy[krs le; ;g crk fn;k Fkk fd mDr yksxksa dks pksVsa dSls vkbZA** In cross-examination, Gulab Bano (P.W.8) admitted to be correct that before the fight, an altercation had taken place between parties. We reproduce the exact portion from the testimony of Gulab Bano (P.W.8) as under:- ^^;g lgh gS fd eq>s bl ckr dh tkudkjh gS fd yqgkjksa ds pkSds esa NksVw vkSj gqlSu ds chp rkft;k dks ns[kus ckcr dgk&lquh gqbZ FkhA ;g lgh gS fd eq>s bl ckr dh Hkh tkudkjh gS fd dsl ds eqyfteku ds }kjk ifjoknh i{k ds f[kykQ yqgkjksa ds pkSd esa ykBh] lfj;ksa ls ekjihV dh xbZA** It will be pertinent to mention that independent person Dholu Khan (P.W.9) in cross-examination has stated that the complainant party was armed with lathis. This witness in the court stated as under:- ^^;g dguk lgh gS fd eSaus e'k:n~nhu jks'ku teky ;klhu ds tks pksVs vkbZ Fkh oks iqfyl okyksa dks crk nh FkhA----;g dguk lgh gS fd >xM+s ds le; eksgEen gqlSu o mlds ifjokj okyksa ds gkFkksa esa ydfM+;k FkhA vt[kqn dgk fd mUgksaus >xM+k ugha fd;kA** We are of the view that there is no necessity to give gist of the testimony of other witnesses. 26. In the present case, accused Misruddin injured had appeared in the court as D.W.1. This witness has stated that opposite party came armed and had opened the attack. 27. Mr. A.K. Gupta, the learned counsel appearing for the accused Jamaluddin and Misruddin has submitted that the prosecution witnesses have scant regard for the truth. In the FIR, they had named sixteen persons of the family. It is contended before us that except injury on the head of deceased Mohd. Hussain, and one grievous injury on the finger of right hand of Pappu Khan (P.W.2) all injuries have been caused with blunt weapon and are simple in nature. Mr. In the FIR, they had named sixteen persons of the family. It is contended before us that except injury on the head of deceased Mohd. Hussain, and one grievous injury on the finger of right hand of Pappu Khan (P.W.2) all injuries have been caused with blunt weapon and are simple in nature. Mr. Gupta, further submitted that except injury attributed to Jamaluddin appellant, which is injury on the head of deceased Mohd. Hussain, all injuries have been caused with blunt weapon and therefore, it cannot be said that other accused shared common intention with Jamaluddin. 28. Mr. Deepak Soni counsel for the appellant Salim has adopted arguments raised by Mr. A.K. Gupta. Mr. S.S. Hasan, counsel for the complainant has submitted that accused party was aggressor. We find that there are two injuries on the head of Misruddin accused, all other injuries on the person of Roshan Khan, Misruddin and Jamaluddin were found simple in nature. The said injuries are on the non vital parts of the body. Therefore, as per law laid in Lakshmi Singh and Others v. State of Bihar, reported in (1976) 4 Supreme Court Cases 394, there was no need for the complainant party to explain injuries on the person of accused. It is true that FIR is silent regarding injuries suffered by the complainant party. But at the same time, Abdul Rajjak (P.W.1) has admitted that the accused also suffered injuries in the occurrence and a cross case has been registered against his side i.e. complainant party for the injuries caused to the accused party. 29. Having said that, due to nature of injuries suffered by accused party, complainant party is not under obligation to explain these injuries, we cannot ignore that the accused party had reached hospital before the arrival of the complainant party. We also cannot ignore that at the same time when the complainant had given their version in statement (Exhibit-P/1), accused party had also divulged their version in the FIR (Exhibit-D/11). Both the parties in their respective versions, stated that the occurrence had ensued while the parties were watching Tajia procession on the day of Moharram. As per the complainant party, three months before the occurrence, the altercation had taken place over the Bada and qua the same compromise was effected. Both the parties in their respective versions, stated that the occurrence had ensued while the parties were watching Tajia procession on the day of Moharram. As per the complainant party, three months before the occurrence, the altercation had taken place over the Bada and qua the same compromise was effected. Gulab Bano (P.W.8) in the court has stated that the present occurrence ensued after there was an altercation ¼dgk&lquh½ between Chhotu Khan and Mohd. Hussain. Thus, it is apparent and it can be safely inferred that as a result of above altercation, the parties came to blows. It has come in evidence also that both the parties had not gone prepared to pick up fight but while watching Tajia procession after exchange of hot words, parties came to blows. 30. In the present case, indeed, accused party became better of the complainant party and one of the accused Jamaluddin in quick succession had caused two injuries on the head and face on the person of deceased. Thus, it can be safely said that the accused party had no intention to cause murder and all of a sudden, on the spur of moment, without any pre-meditation the occurrence had ensued, as a result of altercation ¼dgk&lquh½ 31. We may refer here to Exception 4 of Section 300 IPC, which reads as under:- "Culpable homicide is not murder if it is committed without premeditation 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." 32. It has been specifically stated in Exception 4 of Section 300 IPC that in a sudden fight in the heat of passion, upon a sudden quarrel if the parties have not taken any due advantage, Exception 4 can be invoked. Considering the nature of injuries on the accused and the complainant party, finding that only Jamaluddin had caused injury on the head with sword on the person of deceased Mohd. Hussain, we are of the considered opinion that the accused party had not taken undue advantage. 33. At the cost of repetition, we may say that all the injuries on the person of Abdul Rajjak (P.W.1), Aamin (P.W.4), Saddique (P.W.6) and Gulab Bano (P.W.8) are simple in nature. Hussain, we are of the considered opinion that the accused party had not taken undue advantage. 33. At the cost of repetition, we may say that all the injuries on the person of Abdul Rajjak (P.W.1), Aamin (P.W.4), Saddique (P.W.6) and Gulab Bano (P.W.8) are simple in nature. On the person of Pappu Khan (P.W.2) alone out of three injuries, only injury no.2 on the finger of right hand has been declared as grievous. Similarly, on the person of deceased Mohd. Hussain, except injury on the head caused by accused Jamaluddin all other injuries are simple in nature. Explanation to Exception 4 to Section 300 IPC, specifically provides that it is immaterial as to which party had offered the provocation or committed first assault. Thus, as stated earlier, due to altercation between Chhotu Khan and Mohd. Hussain parties came to blows. We also cannot become oblivious of the fact that all the accused belong to one family. Thus, we are of the view that in the present case since occurrence was sudden fight, Section 149 IPC cannot be invoked and each accused shall be responsible for individual liability. 34. Injury no.2 caused on the person of Pappu Khan (P.W.2) has not been specifically attributed to anybody, thus, we cannot determine as to which accused had caused injury no.2 on the person of Pappu Khan (P.W.2). Thus we hold that all the accused except Jamaluddin will be guilty of offence under Section 323 IPC. 35. We shall be failing in duty if we do not notice the argument raised at this juncture by Mr. S.S. Hasan, counsel for the complainant. He submitted that since Jamaluddin had caused two injuries, one on face and second on head, he cannot be granted benefit of Exception 4 of Section 300 IPC. 36. We find that in case of Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217 , Supreme Court held that the number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden, unpremeditated and accused must have acted in heat of anger. We shall reproduce the Para 6 of the Judgment as under:- "7. We shall reproduce the Para 6 of the Judgment as under:- "7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. 37. We may also notice that it has been held by the Supreme court that when a sudden fight had taken place, Section 149 IPC is not attracted. It was held by the Hon'ble Supreme Court in the case of Jumman and 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. 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. 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." 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." 38. Thus, taking totality of circumstances, and reasons given by us, the conviction of the accused appeallant Jamaluddin is converted from Section 302/149 IPC to Section 304-I IPC. We set aside the life imprisonment awarded upon him and sentence him to undergo ten years RI and to pay a fine of Rs.10,000. In default of payment of fine to further undergo one year R.I. 39. We set aside the conviction and sentence of remaining accused appellants namely Misruddin, Roshan Khan, Nizam @ Nijamuddin, Hakim and Salim for the offences under Sections 147, 148, 341, 326 and 302/149 IPC and uphold the conviction and sentence awarded upon them for the offence under Section 323 IPC. 40. In view of modification in conviction and sentence in above terms, all the three appeals stand disposed of. 41. At this juncture, Mr. 40. In view of modification in conviction and sentence in above terms, all the three appeals stand disposed of. 41. At this juncture, Mr. Deepak Soni counsel appearing for the accused Salim has stated that out of sixteen persons named, only seven persons were sent for trial by the investigating agency, one of them Chhotu Khan died during the trial, whereas, no charge-sheet was filed against the remaining nine accused. Mr. Soni further contended that later an application under Section 319 Cr.P.C. was filed for summoning Baddu Khan, Sikandar, Bahadur, Rahman, Kalu and Islam. In the said application, aforesaid six accused were summoned. Aggrieved against the same, they have filed revision petition before this Court and the same is pending before the learned Single Judge. The said revision petition is not listed before us. 42. Since at the fag end of the dictation of the judgment, we have been informed regarding the pendency of the revision by the learned counsel for the appellant, we decline to list that revision petition before us. Let the revision petition filed against the order of summoning additional accused under Section 319 Cr.P.C. be posted before the learned Single Judge in due course. However, we expected that the learned counsel for the appellant at the out set should have disclosed to us that revision petition filed by co-accused is pending so that same could be listed with the present appeals after obtaining orders from Hon'ble the Chief Justice. We cannot appreciate that once we have given our mind and had dictated the judgment at that stage, we have been acquainted qua the pendency of the criminal revision petition, not listed before us. Conviction and sentence modified as above - Revision against order summoning additional accused under section 319 Cr.P.C. to be listed before single judge.