JUDGMENT / ORDER 1. Per: Hon’ble Kanwaljit Singh Ahluwalia, J. (Oral) Ramhet son of Mangtu along with his five sons namely Than Singh, Kamal Singh, Hukam Singh, Ratan Singh and Satish Kumar, were tried by the court of Additional Sessions Judge (Fast Track) No.4, Bharatpur, Headquarter Deeg. The said court vide impugned judgment dated 5.2.2010, acquitted Ramhet Singh, Hukam Singh, Ratan Singh and Satish Kumar. However, the trial court came to the conclusion that Kamal Singh and Than Singh substantively committed the offences punishable under Section 302 and 323 IPC. Thus, both Kamal Singh and Than Singh were convicted for the offences under Secction 302 and 323 IPC. 2. Having convicted the appellants for the above said offences, the trial Judge vide a separate order of even date, sentenced them, as under:- 3. U/s. 302 IPC- to undergo life imprisonment and to pay a fine of Rs.5,000/- each, in default of payment of fine, to further undergo three months S.I. U/s. 323 IPC- to undergo six months R.I., and to pay a fine of Rs.500/- each, in default of payment of fine to further undergo one month S.I. The above said sentences were ordered to run concurrently. 4. Aggrieved against their conviction and sentence, Than Singh and Kamal Singh have filed D.B. Criminal Appeal No. 122/2010 with the prayer that the conviction pronounced and sentence awarded be set aside. The complainant Rajesh son of Amrit Lal to assail the acquittal of Ramhet Singh son of Mangtu, Hukam Singh, Ratan Singh, Satish Kumar, Kamal Singh and Than Singh, has filed D.B. Criminal Appeal No. 222/2010. Since both the appeals are directed against the common judgment, we shall decide both the appeals together. 5. The criminal proceedings in the present case were set into motion on the basis of statement (Exhibit-P/1) made by Rajesh (P.W.1) before A.S.I. Hetram (P.W.6), whereupon a formal FIR (Exhibit-P/22) bearing No. 284/2008 was registered at Police Station Sikri, Bharatpur, statement (Exhibit-P/1) when translated into English, reads as under:- “Statement of Rajesh S/o Shri Amrit Lal, by caste Jatav, aged 27 years, resident of Raisinghpur Palki Police Station Sikri. Stated that today on 18.12.2008, in our village proceedings of Panchayat were going on, as ten days before an altercation had arisen between me and Ramhet. From our side in the Panchayat, I, my father Amrit Lal and uncle Johari were present. Stated that today on 18.12.2008, in our village proceedings of Panchayat were going on, as ten days before an altercation had arisen between me and Ramhet. From our side in the Panchayat, I, my father Amrit Lal and uncle Johari were present. From other side, Ramhet, Ratan, Hukam, Than Singh, Kamal and Satish were present. Panchas of village namely Ismail, Roojdar, Idrish, Ishaq and number of other persons were present there. At a little distance from the place where Panchayat proceedings were held, ladies from our and other side were standing. Ladies had exchange of words - ‘ dgk lquh gks xbZ ’. At that time, I and my father went ahead to make women from our side to see reason. Then Than Singh, Kamal, Ratan, Satish and Ramhet caused injury on my head with lathi. Thereafter, Than Singh and Kamal caused lathi injury to my father. I and my father due to receipt of injuries fell at the spot and became unconscious. In the occurrence, Vimla w/o Suresh, Mahesh s/o Johari had also received injuries. Sd/- Sd/- Rajesh Kumar ASI Thana Sikri 18.12.08 CHC Sikri Time 12:45 PM” 6. From perusal of the above written report, following facts are discernible:- a) That ten days before the occurrence, Rajesh (P.W.1) and Ramhet acquitted accused, father of the present appellants Than Singh and Kamal Singh had an altercation. b) That to resolve the earlier dispute, a Panchayat was convened and the proceedings of Panchayat were being watched by women of both sides. c) That women of both sides had exchange of hot words. d) That at that moment, accused had caused injuries to Rajesh (P.W.1) and Amrit Lal, father of the complainant Rajesh. e) That the Panchayat proceedings were attended by Roojdar (P.W.7), a member of Panchayat. Thus, in the written report, the presence of Roojdar (P.W.7) at the spot is admitted. 7. We may highlight here that in the FIR, place of incident has not been specified, therefore, it is to be assumed that as per statement (Exhibit-P/1) and FIR (Exhibit-P/22), the place of the occurrence is, where Panchayat proceedings were going on. 8. In the occurrence, Amrit Lal, father of Rajesh (P.W.1) received two injuries on head. He was taken to Community Health Center, Sikri. From CHC Sikri, Amrit Lal was referred to RBM Hospital, Bharatpur. Amrit Lal was declared dead at the said hospital. 8. In the occurrence, Amrit Lal, father of Rajesh (P.W.1) received two injuries on head. He was taken to Community Health Center, Sikri. From CHC Sikri, Amrit Lal was referred to RBM Hospital, Bharatpur. Amrit Lal was declared dead at the said hospital. As per Post Mortem Report (Exhibit-P/19), deceased Amrit Lal died on the day of occurrence i.e. 18.12.2008 at 6:30 PM. In the Post Mortem Report (Exhibit-P/19), Dr. Harish Sharma (P.W.10) has noted following two injuries:- External Injury ante mortem in nature. “i) L.W. with clotted blood, 5cm x 2½cm x ?, bone deep, over mid parietal region and mid parietal line obliquely placed. ii) L.C. 3cm x 1cm x bone deep on forehead left side. Above injuries were caused by a blunt object, duration within 24 hours.” 9. As per opinion of the doctor, deceased Amrit Lal died as a result of Coma brought about as a result of ante mortem injuries to skull and brain, as mentioend in the Post Mortem Report. As per opinion of the doctor, injuries were sufficient to cause death in the ordinary course of nature. 10. Rajesh (P.W.1) in the occurrence had received four injuries. He was examined on 18.12.2008 at 3:05 PM at Community Health Center, Sikri by Dr. Amrit Lal (P.W.13). In the injury report (Exhibit-P/2) on the person of Rajesh, following injuries have been found:- “i) Contusion 3.0 x 3.0 cm, on ant. Aspect of vertex of head on left side. Reddish blue, simple, blunt. ii) Abrasion, 1.0 x 0.5cm, vertical on behind left ear with reddish colour, simple, blunt. iii) Contusion 3.0 x 0.6 cm, transverse behind left ear, reddish blue, simple, blunt. iv) Contusion 4.0 x 2.0 cm, on upper part of right forearm laterally, simple, blunt.” 11. Dr. Amrit Lal (P.W.13) on the said date at 3:40 PM, had also examined Saroj (P.W.4) wife of Mahesh and as per injury report (Exhibit- P/10) had found following injuries on her person:- “i) Contusion dorsum of thumb of right hand, reddish blue with multiple abrasions, simple, blunt. ii) Contusion 2.0 x 1.0 cm, vertical on ant. aspect of middle part of right forearm, simple, blunt.” 12. Both the injuries were caused by blunt weapon and were found to be simple in nature. 13. Dr. ii) Contusion 2.0 x 1.0 cm, vertical on ant. aspect of middle part of right forearm, simple, blunt.” 12. Both the injuries were caused by blunt weapon and were found to be simple in nature. 13. Dr. Amrit Lal (P.W.13) on the said date, at 3:30 PM, had also examined Sundari (P.W.11) w/o Rajesh and in the injury report (Exhibit- P/20), had noted following two injuries on the person of Sundari:- “i) Contusion reddish blue 3.0 x 3.0 cm, on left side of vertex of head with mild swelling, simple, blunt. ii) Contusion 8.0 x 1.5 cm, vertical on ant. aspect of middle part of right arm, reddish blue, simple, blunt.” On the said date and time, Dr. Amrit Lal (P.W.13) also examined Vimla (P.W.15) and in the injury report (Exhibit-P/21), had noted following injury:- “i) Lacerated wound 3.0 x 0.5 cm x scalp deep, transverse on right frontal region with wet blood clot, simple, blunt” 14. We may notice here that the trial Judge had exhibited on record injuries suffered by Hukam Singh acquitted accused. As per injury report (Exhibit-D/6) Hukam Singh suffered following injuries:- “i) Incised wound 3.0 x 0.5 cm x scalp deep, transverse on left frontal region. Healing with granulation present with pus formation, sharp. ii) Loose lower 4 incisor teeth, gum bluish red. Abrasion present at inner surface of lower lip of mouth, blunt. iii) Plaster of Paris applied at right forearm as a treatment of fracture of bones, blunt. iv) Abrasion 2.5 x 1.5 cm, on lateral surface of lower part of left forearm. Brownish scab present, simple, blunt. v) Abrasion 1.0 x 0.6cm, on lateral aspect of upper part of left thigh, simple, blunt.” 14. Hukam Singh acquitted accused was also radiologically examined and as per report of Radiologist (Exhibit-D/7), fracture of right Radius was found. X-ray report of Hukam Singh is dated 22.12.2008. In the said report, doctor had noted Callus formation. It has come in evidence of Dr. Amrit Lal (P.W.13) that he had examined Hukam Singh on 21.12.2008 at 9:30 AM. Dr. Amrit Lal (P.W.13) in the court stated that duration of injuries suffered by Hukam Singh was within three to five days. X-ray report of Hukam Singh is dated 22.12.2008. In the said report, doctor had noted Callus formation. It has come in evidence of Dr. Amrit Lal (P.W.13) that he had examined Hukam Singh on 21.12.2008 at 9:30 AM. Dr. Amrit Lal (P.W.13) in the court stated that duration of injuries suffered by Hukam Singh was within three to five days. This witness on 18.12.2008 at 1:45 PM, had also examined Kamal Singh and in the injury report (Exhibit-D/8), he had noted following injury:- “i) Contusion with swelling, 5.0 x 5.0 cm, at vertex of head at central part. Reddish blue in colour, blunt. He had complained of headache and vomoting.” 15. The complainant, Rajesh appeared before the trial court as P.W.1. He reiterated that on the day of occurrence, Panchayat was convened. The proceedings were going on. However, this witness improved the case and deposed that after sometime, he had heard shrieks of his sister Rajbala, who was going to school. At that time, Than Singh and Kamal Singh and Ramhet left the Panchayat. Two – three minutes later, they also started going towards their house. On the common passage, accused came and attacked his family members. This witness in the court specifically stated that Than Singh and Kamal Singh had caused a lathi blow each on the head of his father, deceased Amrit Lal. Amrit Lal fell on the ground then Hukam Singh, Ratan Singh, Than Sing, Kamal Singh and Satish and thereafter Ramhet had caused injuries to his father Amrit Lal with kick blows. 16. To similar effect is the statement made by Johari Lal (P.W.3), Saroj (P.W.4), Sundari (P.W.11) and Vimla (P.W.15). We may notice here that Rajesh (P.W.1), Saroj (P.W.4), Sundari (P.W.11) and Vimla (P.W.15) are closely related. 17. What is important for us is the testimony of Roojdar (P.W.7), member of Panchayat, whose presence has been noted by Rajesh in the statement (Exhibit-P/1). In the statement (Exhibit-P/1), the complainant Rajesh has stated that – rFkk xkao ds iap bLekbZy] :tnkj] bZnjh’k bZ’kkd o dbZ vkneh FksA ”. 18. From perusal of the testimony of closely related injured witnesses namely Rajesh (P.W.1), Saroj (P.W.4), Sundari (P.W.11) and Vimla (P.W.15), it is apparent that they have shifted the place of occurrence. In the statement (Exhibit-P/1), the complainant Rajesh has stated that – rFkk xkao ds iap bLekbZy] :tnkj] bZnjh’k bZ’kkd o dbZ vkneh FksA ”. 18. From perusal of the testimony of closely related injured witnesses namely Rajesh (P.W.1), Saroj (P.W.4), Sundari (P.W.11) and Vimla (P.W.15), it is apparent that they have shifted the place of occurrence. In the statement (Exhibit-P/1) the place of occurrence has not been specified, therefore, it is to be inferred that the occurrence had taken place, where the Panchayat was being convened or nearby where women of both sides were having altercation. 19. A perusal of the site plan (Exhibit-P/5), reveals that the occurrence had taken place at Point ‘X’, which is a common passage, going towards the house of the complainant party. A perusal of the site plan further reveals that while going to their house, the complainant party had to pass in front of the house of the accused Ramhet and his family members. A perusal of the site plan further reveals that the occurrence had taken place near the house of accused. In these circumstances, the testimony of Roojdar (P.W.7), who is independent witness, and had attended Panchayat proceedings, assume importance. Roojdar (P.W.7) in the court stated that they were sitting at the place where Panchayat was held and then they heard noise. The noise was coming from Chabutra in front of house of accused Ramhet. This witness stated that then they went to the place where fight was going on. This witness further stated that stones were being pelted. This witness further stated that Hukam Singh and Amrit Lal fell on Chabutra in front of the house of Ramhet. Then villagers and members of Panchayat intervened and thereafter, both the sides took their injured to the hospital. This witness further stated that Hukam Singh was directly referred to Bharatpur Hospital. This witness further stated that stones were being pelted. This witness further stated that Hukam Singh and Amrit Lal fell on Chabutra in front of the house of Ramhet. Then villagers and members of Panchayat intervened and thereafter, both the sides took their injured to the hospital. This witness further stated that Hukam Singh was directly referred to Bharatpur Hospital. We shall reproduce the following portion from the testimony of Roojdar (P.W.7), as under:- “ ge cSBs jgs rc 5&7 feuV ckn 'kksj 'kjkc gqvkA ;g 'kksj 'kjkck jkegsr ds pkSrjk ij jkLrs ds lgkjs gqvkA fQj ge lc x,A tgka >xMk gks jgk FkkA ogk iRFkj fQd jgs FksA jkegsr dk yMdk gqde o ve`ryky jkegsr ds pkSrjk ij fxj x,A fQj xkao ds o iapk;r ds yksxks us chp cpko fd;kA fQj ;s nksuks gh i{k vius vius vknfe;ks dks vLirky ys x, fQj FkksMh nsj ckn ekSds ij iqfyl vk x;hA gqDe dks lh/kk Hkjriqj jsQj dj fn;kA (Emphasis Supplied) 'kke dks 8&9 cts lwuk fd ve`ryky ej x;kA fQj ve`ryky dh yk’k xkao eas vk;h vkSj mldk nkx yxk fn;kA ” 20. The testimony of Roojdar (P.W.7), independent witness, member of Panchayat in categorical terms prove that the occurrence had taken place on Chabutra in front of the house of accused Ramhet. So far the place of occurrence is concerned, the deposition of Roojdar (P.W.7) is clincher. This witness also stated that at the spot, i.e. upon Chabutra, which is in front of the house of Ramhet accused, both Amrit Lal deceased and Hukam Singh acquitted accused fell due to receipt of injuries. This witness also stated that both the parties took their injured to the hospital. This witness further testified that the occurrence had originated due to pelting of stones. This witness further stated that Hukam Singh was referred to the hospital at Bharatpur. Bharatpur is district Headquarter. 21. Roojdar (P.W.7) in the court has also stated that on Chabutra, in front of the house of Ramhet, Johari, Omi, Rajesh, Mahesh, Sundari, Saroj and Vimla were present. They were not armed but they were pelting stones. This witness stated that both the sides were pelting stones. Bharatpur is district Headquarter. 21. Roojdar (P.W.7) in the court has also stated that on Chabutra, in front of the house of Ramhet, Johari, Omi, Rajesh, Mahesh, Sundari, Saroj and Vimla were present. They were not armed but they were pelting stones. This witness stated that both the sides were pelting stones. This witness stated as under:- “ ;g lgh gS fd jkegsr ds pcwrjs ij tksgjh] vkseh] jkts’k egs’k] lqUnjh ljkst foeyk FksA ij gfFk;kj fdlh ij ugh FkkA ;s yksx iRFkj ekj jgs FksA nksuks ifVZ;k gh iRFkj Qsd jgh FkhA ” 22. Hukam singh acquitted accused was medico-legally examined on 21.12.2008. It has come in evidence that immediately Hukam Singh, who had received injuries, was taken to the hospital at Sikri and from there, he was referred to Hospital at Bharatpur. Meanwhile, on 18.12.2008 at 12:45 PM, statement of Rajesh (P.W.1) was recorded by ASI Hetram (P.W.6). Therefore, till Hukam Singh reached hospital at Bharatpur, police had swung into action and therefore, we can assume that medical examination of Hukam Singh was delayed due to intervention of the police. 23. Roojdar (P.W.7), an independent witness is categoric to the extent that Hukam Singh had received injuries at the same place and at the same time when deceased Amrit Lal had received injuries. The trial Judge had not taken into consideration the injuries on the person of Hukam Singh on the ground that there was Callus formation qua the injury suffered by Hukam Singh around the Radius. As per Radiologist report (Exhibit-D/7), there is fracture of Radius of Hukam Singh. Hukam singh had also suffered injury on the head. The report of Radiologist dated 22.12.2008, was prepared after four days of the occurrence. It can be safely assumed that within 96 hours, Callus formation had started. Furthermore, Dr. Amrit Lal (P.W.13) has stated that duration of injuries suffered by Hukam Singh was three to five days. Hukam Singh was examined vide Exhibit-D/6 by the doctor on 21.12.2008 at 9:30 AM. Thus, if the duration of three days, as opined by the doctor, is accepted, Hukam Singh had suffered injuries during the course of the occurrence, even otherwise as per prosecution witness Roojdar (P.W.7), Hukam Singh received injuries in the occurrence. 24. Kamal Singh has also suffered an injury on the head as per injury report (Exhibit-D/8). Thus, if the duration of three days, as opined by the doctor, is accepted, Hukam Singh had suffered injuries during the course of the occurrence, even otherwise as per prosecution witness Roojdar (P.W.7), Hukam Singh received injuries in the occurrence. 24. Kamal Singh has also suffered an injury on the head as per injury report (Exhibit-D/8). Thus, it is apparent that due to pelting of stones, Hukam Singh and Kamal Singh had suffered injuries in the occurrence. Once pelting of stones is taking place, in front of the house of accused and the complainant party succeeded to climb over the Chabutra in front of the house of Ramhet accused, then the complainant party is bound to explain the injuries on the person of Hukam Singh acquitted accused, who had suffered fracture of the Radius besides injury on the head. Thus, the prosecution has suppressed the origin and genesis of the occurrence. 25. We also find that the accused party has also not raised a specific plea of defence. They have withheld from the court as to who caused injuries to the complainant party. Hukam Singh in his statement recorded under Section 313 Cr.P.C., has stated that the complainant party came in front of his house and caused him injuries. But the accused party has not taken any specific plea that they also caused injuries in self defence. To us, both the sides are not coming before the court with clean hands. Both the parties have resorted to exaggeration and suppressing their own role. Hence, we can safely assume that when the Panchayat was convened, hot words were exchanged between the ladies and an altercation had taken place. The complainant party while going to their house were bound to undertake the common passage which is in front of the house of the accused. At that time, suddenly, something happened and both the parties resorted to pelting of stones, followed by causing of injuries to the deceased Amrit Lal and other members of his family and Kamal Singh and Hukam Singh. Thus, when the complainant party was passing in front of the house of accused, a sudden fight had taken place. At that time, suddenly, something happened and both the parties resorted to pelting of stones, followed by causing of injuries to the deceased Amrit Lal and other members of his family and Kamal Singh and Hukam Singh. Thus, when the complainant party was passing in front of the house of accused, a sudden fight had taken place. Exception 4 to Section 300 IPC along with Explanation 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. Explanation – It is immaterial in such cases which party offers the provocation or commits the first assault.” 26. We may also notice that it has been held by the Supreme court that when a sudden fight had taken place, offence will fall under Section 304 Part-I IPC. It was held by the Hon'ble Supreme Court in the case of Jumman & Ors. vs. 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. 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. vs. State of Rajasthan [2007 (1) RCC 228], relying upon Dharman v. State of Punjab [ AIR 1957 SC 324 ] held as under:- “13. 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. vs. 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 vs. 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.” 27. We may notice here that Rajesh (P.W.1) in the statement recorded before police in Exhibit-P/1, has not stated that Ramhet, Hukam Singh, Ratan Singh and Satish Kumar had caused injuries to deceased Amrit Lal, with kicks and blows. On the person of deceased Amrit Lal, only two injuries have been found. Thus, the accused party confronted Rajesh (P.W.1) the complainant with his previous statement Exhibit-P/1. Rajesh (P.W.1) admitted in the court as under:- “ eq>s ;g /;ku ugh gS fd eSus vius ipkZ c;ku es iqfyl dks ;g crk;k ;k ugh fd **rks gqDe] jru] Fkkuflag] dey] lrh’k o buds firk jkegsr us ykrks ls esjs firk ds lkFk ekjh** ysfdu ;g ckrs esjs ipkZ c;ku es D;ks ntZ ugh gSA ” Thus, as we have already held that the complainant party had also resorted to exaggeration, the trial Judge was justified to acquit Ramhet Singh, Hukam Singh, Ratan Singh and Satish Kumar. Consequently, upholding finding regarding acquittal of Ramhet Singh, Hukam Singh, Ratan Singh and Satish Kumar, we dismiss D.B. Criminal Appeal No. 222/2010, preferred by the complainant. 29. Consequently, upholding finding regarding acquittal of Ramhet Singh, Hukam Singh, Ratan Singh and Satish Kumar, we dismiss D.B. Criminal Appeal No. 222/2010, preferred by the complainant. 29. Having held that the occurrence was sudden affair and both Than Singh and Kamal Singh had caused one injury each, on the person of deceased Amrit Lal, we are of the view that the offences qua them will fall under Section 304 Part-I IPC and not under Section 302 IPC. 30. Consequently, we acquit the appellants Than Singh and Kamal Singh of offence under Section 302 IPC and hold them guilty of offence under Section 304 Part-I IPC. 31. Due to conversion of offence, we set aside the life imprisonment awarded upon the appellants Than Singh and Kamal Singh and sentence them to ten years R.I. under Section 304 Part-I IPC. We also impose fine of Rs.10,000/- upon each of them. In default of payment of fine, the appellants shall further undergo one year R.I. 32. The fine so imposed upon deposit by the appellants, shall be disbursed as compensation to the legal heirs of the deceased Amrit Lal. 33. In view of modification in conviction and sentence in above terms, the appeal filed on behalf of the appellants Than Singh and Kamal Singh stands disposed of.