JUDGMENT 1. Present Criminal Appeal is directed against the judgment of conviction and order of sentence dated 08th March, 2001 passed by the Additional Sessions Judge, Sabalgarh, District Morena (M.P.) in Sessions Trial No.294 of 1999; whereby the present appellant has been convicted under section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs.2,000/- in default to suffer additional R.I. for six months. 2. Prosecution story, in short, is that on 21st July, 1999, at about 6.00 p.m., complainant Ramprasad lodged a report to the effect that on the same day at about 4 pm, Malkhan and Pappu@ Kashiram were fencing their Courtyard. At that juncture, accused Ramcharan (appellant) and Ramswaroop armed with Gadasis (Pharsas), Brijesh and Suresh armed with Luhangis, Jagannath, Ramgopal, Kamlesh and Kalli came with Lathis and prevented them from fencing the Courtyard. Then, with an intention to kill Ramcharan dealt a Gadasi blow on the head of Pappu @ Kashiram, while the second gadasi blow was inflicted by Ramswaroop again on his head. As Malkhan came forward to intervene, co-accused Brijesh, Suresh, Jagannath, Ramgopal, Kamlesh and Kalli threw him on the ground and with an intention to kill assaulted him with luhangis and lathis, on his back, hands and legs. Malkhan also fell down. Both the injured persons were rendered unconscious. They were rescued by complainant Ramprasad, Babu, Prithvi, Ramesh and Shripal while the miscreants fled from the spot. Thereafter the complainant and his associates brought Malkhan and Pappu in an unconscious condition for lodging report. Upon such information given by complainant Ramprasad at Police Station Raghunathpur, District Sheopur, FIR was registered at Crime No.21/99. The injured were sent by Ashok Singh Tomar (P.W.14) for medical examination to Sabalgarh hospital. Dr.R.B.Agrawal (P.W.1) conducted the MLC of Pappu and Malkhan and as the condition was serious, they were referred to Gwalior Hospital, where during treatment on 22.7.1999 at about 2.00 pm. Pappu passed away. During investigation, spot map (Ex.P/38) was prepared by Ashok Singh Tomar (P.W.14). He also seized planed and blood stained earth from the spot vide seizure memo (Ex.P/9) and forwarded application (Ex.P/3) to Medical Officer Sabalgarh for recording dying declaration of Pappu @ Kashiram. As Pappu @ Kashiram had died at Gwalior Hospital, marg information, Panchnama lash and post mortem report were received by the investigating officer from Kampoo Police Station. He also seized planed and blood stained earth from the spot vide seizure memo (Ex.P/9) and forwarded application (Ex.P/3) to Medical Officer Sabalgarh for recording dying declaration of Pappu @ Kashiram. As Pappu @ Kashiram had died at Gwalior Hospital, marg information, Panchnama lash and post mortem report were received by the investigating officer from Kampoo Police Station. Copy of the FIR was sent to the Magistrate with corresponding entry in the Daak Book. Appellant Ramcharan was arrested on 24.7.1999 vide arrest memo (Ex.P/10). On his discovery memo (Ex.P/11), a pharsa was recovered from the bushes on the way to Heerapur, which was seized vide seizure memo (Ex.P/12). Other accused persons Ramswaroop, Suresh, Kalli Rawat, Kamlesh, Brijesh, Ramgopal and Jagannath were also apprehended. The articles seized from accused persons were sent for chemical analysis vide Ex.P/42. Upon collection of incriminating material during investigation, challan was filed in the Court of JMFC, who committed the case to the Court of Session from trial. 3. On being charged with the offence punishable under section 302, IPC, the appellant abjured the guilt and pleaded false implication. 4. To establish the charges, the prosecution examined as many as 14 witnesses including eye witnesses Ramprasad/complainant (P.W.12), Malkhan (P.W.2), Prithviraj (P.W.3), Gullobai (P.W.5), and Babulal (PW6), whereas evidence of Ramesh (D.W.1) was recorded in defence. 5. On consideration of the evidence on record, learned trial Judge, for the reasons recorded in the impugned judgment, found the appellant guilty of the offence charged with. He, therefore, convicted and sentenced him as indicated hereinabove, however, other accused persons were acquitted of charges. 6. Shri Atul Gupta, learned counsel for the appellant has made following submissions :-- (1) The impugned judgment suffers from surmises and conjectures. Therefore, the same is polluted with illegality for following reasons :- (A) Though there are five eye-witnesses, namely; Malkhan (P.W.2), Prithviraj (P.W.3), Gullo Bai (P.W.5), Babulal (P.W.6) and Ramprasad (P.W.12) but they are divided on the point as to who has hit deceased Kashiram @ Pappu first, i.e. Ramcharan, convicted/appellant or Ramswaroop/acquitted, though both were accused. Therefore, the same is polluted with illegality for following reasons :- (A) Though there are five eye-witnesses, namely; Malkhan (P.W.2), Prithviraj (P.W.3), Gullo Bai (P.W.5), Babulal (P.W.6) and Ramprasad (P.W.12) but they are divided on the point as to who has hit deceased Kashiram @ Pappu first, i.e. Ramcharan, convicted/appellant or Ramswaroop/acquitted, though both were accused. (i) Gulli Bai (P.W.5) in para 2 and Babulal (P.W.6) in para 2 of their deposition have deposed that Ramswaroop had hit the Kashiram @ Pappu with pharsa on his head first and thereafter Ramcharan also hit him with pharsa on head, whereas Malkhan (P.W.2) in para 2 and Ramprasad (P.W.12) in para 1 of their deposition have deposed that Ramcharan had hit Kashiram @ Pappu with pharsa on his head first and thereafter Ramswaroop hit him with pharsa on head. However, Prithviraj (P.W.3) has stated that Ramcharan and Ramswaroop both have hit with pharsa on the head of the deceased Kashiram @ Pappu. (B) Learned counsel emphasized on the fact that Ramcharan, the appellant, has been convicted and sentenced for life, whereas Ramswaroop has been acquitted. The reasoning/justification for acquittal of Ramswaroop, as evident from para 25 to 28 of the judgment suggests perversity of approach of the Trial Court. The apparent reason assigned therefor is to the effect that since Ramcharan had suffered injuries in the alleged incident, whereas Ramswaroop did not suffer injuries, there was every likelihood that Ramcharan had inflicted injuries by pharsa on the occipital region of the head of the deceased, which led to his death. (C) The sole independent witness Ramesh (D.W.1) in para 3 of his deposition has stated that since the complainant party had gone to the land of the accused party and tried to put fencing, which was objected to by the accused party, as a result, the complainant party started assaulting the accused party with weapons like pharsa causing injuries to appellant Ramcharan, as is well corroborated from the MLC conducted on him vide Ex.D/8. Trial Court failed to appreciate the defence evidence in that behalf. Besides, this witness says that Shripal had caused injuries in question to deceased Kashiram @ Pappu, which led to his death. He had neither named Ramcharan nor Ramswaroop. As such trial Court failed to take note of defence evidence. Trial Court failed to appreciate the defence evidence in that behalf. Besides, this witness says that Shripal had caused injuries in question to deceased Kashiram @ Pappu, which led to his death. He had neither named Ramcharan nor Ramswaroop. As such trial Court failed to take note of defence evidence. (D) Trial Court also did not consider the injuries suffered by the accused while it ordered conviction and awarded sentence. (2) Apart from the aforesaid contentions, learned counsel for the appellant submits that the alleged incident had occurred on 21.7.1999 at 4.00 p.m. The age of the appellant was about 58 years as mentioned in the judgment by the trial Court and 60 years as per the MLC report (Ex.D/8). As on date, the appellant is approximately 81 years of age. He has already undergone two years and four months’ jail sentence. Accepting the story of the prosecution as found proved, it is a case of sudden and grave provocation, which led to causing injury by pharsa on the head of the deceased but not with an intention to cause homicidal death, albeit, knowledge thereof may be attributed to the appellant. Hence, it is a case falling in Exception 4 of section 300 of IPC and punishable under section 304 Part II of IPC. Accordingly, it is prayed that custodial sentence of the appellant, who has suffered about two and a half years of custody, may be reduced to the period already undergone. To bolster his submissions in this regard, learned counsel has placed reliance on decisions of the apex Court in the cases of Mohinder Pal Jolly v. State of Punjab [ AIR 1979 SC 577 ], Yogendra Morarji v. State of Gujarat ( AIR 1980 SC 660 ), Sarup Singh v. State of Haryana ( AIR 1995 SC 2452 ) and Kuldeep Singh v. State of Haryana ( AIR 1996 SC 2988 ). 7. Per contra, Dr. Anjali Gyanani, learned Public Prosecutor has made following submissions :-- (1) The impugned judgment is based on critical evaluation of evidence placed on record. Findings recorded are impeccable in nature. The conclusions drawn, conviction ordered and sentence awarded are not liable to be interfered with. 7. Per contra, Dr. Anjali Gyanani, learned Public Prosecutor has made following submissions :-- (1) The impugned judgment is based on critical evaluation of evidence placed on record. Findings recorded are impeccable in nature. The conclusions drawn, conviction ordered and sentence awarded are not liable to be interfered with. (2) If the story of the prosecution is read in juxtaposition with the deposition of Krishna Kumar Rawat (P.W.8), it is evident that the deceased Kashiram @ Pappu and other members of his family; complainant side, were raising fence on the government land, as well discussed in para 10 of the judgment, hence, it is not a case of raising fencing by the complaint over the land of the accused, as argued. (3) That apart, the accused party armed with pharsa, lathi, gadasi had reached the place of incident and after hurling filthy abuses and threat of dire consequences, had attacked the complainant party. Appellant Ramcharan had caused fatal injury on occipital region of the deceased with pharsa causing incised wound of 15 cm. x 4 cm. x bone deep. This fact is well corroborated with the evidence of injured eye witness Malkhan (P.W.2) in para 2 and 8 of his deposition. The aforesaid fact is well corroborated with the deposition of Ramprasad (P.W.12). (4) While rebutting the submission of learned counsel for the appellant about the alleged inconsistency in the ocular evidence of the eye witness as regards the person, who first caused fatal blow on the occipital region of the deceased Ramcharan or Ramprasad, learned Public Prosecutor submits that Malkhan is the injured witness present on spot and after the first pharsa blow on the head by Ramcharan seen by him, he had dived and covered him on the floor to protect from any further blow of pharsa. He has suffered contusion on his right hand below elbow and contusion on right side of chest as evident from MLC (Ex.P/4). Therefore, the testimony of Malkhan (P.W.2) deserves to be preferred and considered in preference to other witnesses. (5) That apart, since appellant Ramcharan has also suffered injuries, trial Court was justified having concluded that pharsa blow on the occipital region of the deceased was caused by Ramcharan first and not by Ramswaroop, who has suffered no injury at all, as well discussed in para 26 to 28 of the judgment. (5) That apart, since appellant Ramcharan has also suffered injuries, trial Court was justified having concluded that pharsa blow on the occipital region of the deceased was caused by Ramcharan first and not by Ramswaroop, who has suffered no injury at all, as well discussed in para 26 to 28 of the judgment. (6) The injuries suffered by the deceased are well corroborated with the MLC (Ex.P/2) and post mortem report (Ex.P/37) duly proved by Dr.R.B.Agrawal (P.W.1) and Dr.Pooran Lal Gupta (P.W.9) besides the ocular evidence on record. In such circumstances, the prosecution has proved the case beyond reasonable doubt. Hence, no interference is warranted in the impugned judgment. 8. Heard learned counsel for the parties. 9. Before adverting to the rival contentions on merits, it would be expedient to advert to the medical evidence available on record. On 21.7.1999 i.e. the date of incident, MLC of injured Pappu was conducted by Dr.R.B.Agarwal (PW1) vide Ex.P/2. He noted one incised wound of size 15 cm x 4 cm x bone deep on his head and one abrasion on his left leg. In the opinion of doctor, injury No.1 i.e. the incised wound was caused by sharp edged weapon within 12 hours. The patient was unconscious and was referred to J.A. Hospital, Gwalior. Injury No.1 was fatal. Dr. Agarwal (PW1) has proved the MLC report (Ex.P/2). In paragraph 3, he has deposed that as Pappu was unconscious, his dying declaration could not be recorded. On the same day, he had conducted MLC of Malkhan and found one contusion behind right elbow of size 10 x 5 cm and another contusion on chest right side of size 13 x 4 cm. Both the injuries were caused within 12 hours of the incident. As Pappu succumbed to the injuries so caused, post mortem examination of the dead body was conducted by Dr. Shri Pooran Lal Gupta (PW9), who noted following injuries vide post mortem report (Ex.P/37):- (i) Stitched wound present over middle of shine of right tibia size 3 cm. long. (ii) Stitched wound present below right knee size 1 cm. long. (iii) Stitched wound present over scalp, semicircular in shape size 18 cm. long. On opening this wound ecchymosis present in subcutaneous tissue of scalp, frontal bone left side, fractured and fracture extends posteriorly between both parietal bone separately at suture line. long. (ii) Stitched wound present below right knee size 1 cm. long. (iii) Stitched wound present over scalp, semicircular in shape size 18 cm. long. On opening this wound ecchymosis present in subcutaneous tissue of scalp, frontal bone left side, fractured and fracture extends posteriorly between both parietal bone separately at suture line. This fracture joins the left side temporal bone fracture, big blood clots present at fracture site, dura mater abraded & lacerated, of both sides, extradural and subdural haemorrhage present. On internal examination doctor found that left side of frontal bone, both parietal and left temporal bone fractured, dura mater lacerated, extradural and subdural haemorrhage present, both sides. Inter-cerebral haemorrhage present on left side. The doctor opined that the death was caused due to shock and haemorrhage due to cranio-cerebral injury within 12 hours of post mortem examination. The nature of death washomicidal. The injuries caused were ante mortem and sufficient to cause death in the ordinary course of nature. In his evidence during trial, Dr. Pooran Lal Gupta (PW9) in paragraph 3 deposed that it was not possible to state as to whether the head injury was caused by sharp edged weapon or blunt weapon. He further deposed that such injury could be caused by Pharsa. In paragraph 4 of his cross-examination, he deposed that had two blows been given on the head, then two separate injuries should have been visible. 10. Malkhan (PW2) is the eye-witness as well as injured person. He has deposed that about 11 months back he along with Pappu alias Kashiram was fencing the Courtyard. At that time, Ramcharan and Ramswaroop armed with Gadasis, Brajesh and Suresh armed with Luhangis came on the spot along with Brajesh, Suresh, Jagannath, Kalli, Ramgopal and Kamlesh who all were armed with Lathis. They asked Pappu not to put the fencing. On being refused, Pappu told them that they had been putting fencing at that place for last 20 years. Being enraged, Ramcharan and Ramswaroop again forbade Pappu from doing so and thereafter appellant Ramcharan gave a Gadasi blow on the head of Pappu due to which blood started oozing out. Then Ramswaroop also gave a Gadasi blow. This witness tried to intervene and in order to save Pappu fell over him. Being enraged, Ramcharan and Ramswaroop again forbade Pappu from doing so and thereafter appellant Ramcharan gave a Gadasi blow on the head of Pappu due to which blood started oozing out. Then Ramswaroop also gave a Gadasi blow. This witness tried to intervene and in order to save Pappu fell over him. At this juncture, co-accused Brijesh, Suresh, Kalli, Jagannath, Kamlesh, Ramgopal assaulted him with Luhangis and Lathis causing injuries on his right hand, shoulder, chest and waist. He further deposed that both Pappu and him were rendered unconscious. In paragraph 3, he has categorically deposed that at the time of incident Prithviraj was passing by and no one else was there. They were taken to Police Station by complainant Ram Prasad, from where Pappu and this witness were sent to Sabalgarh hospital. At Sabalgarh he had regained his consciousness, but Pappu was still unconscious. According to this witness his right hand bone was fractured. From Sabalgarh hospital, they were referred to Gwalior hospital where Pappu breathed his last. In paragraph 9 of his cross-examination, he has deposed that Pappu had received two injuries on his head. In paragraph 10 he has deposed that he had received three injuries on hand and three on back. In paragraph 13 he has shown ignorance about the injuries received by appellant Ramcharan and co-accused Brajesh. Since he is an injured witness, his presence on the spot is not doubtful. He has categorically deposed that first Gadasi blow was given by appellant Ramcharan on the head of deceased Pappu. Although his evidence with regard to another head injury received by Pappu and multiple injuries received by him is falsified by medical evidence, yet, this discrepancy in itself is not sufficient to wash out his entire testimony as it is well settled that the principle falsus in uno falsus in omnibus has no application in India and it is the duty of the Court to sift grain from chaff to find out the truth. The evidence of this witness is corroborated by the deposition of Prithviraj (PW3), who is an eye-witness. He has deposed that while he was going to his field he had seen the incident. He has deposed the manner in which offence was committed and supported the prosecution story. The evidence of this witness is corroborated by the deposition of Prithviraj (PW3), who is an eye-witness. He has deposed that while he was going to his field he had seen the incident. He has deposed the manner in which offence was committed and supported the prosecution story. In paragraph 7 of his cross-examination, he has deposed that Ramcharan had given the Gadasi blow on the head of Pappu and that he had seen one injury on the head of Pappu. In paragraph 9, he has deposed that Ramcharan had asked Pappu not to put the fencing, but Pappu told that it was his Courtyard. Further, he has denied the defence story that Shripal had inflicted Gadasa blow upon the accused persons and it hit Pappu by mistake. 11. Gullibai (PW5) is the mother of deceased Pappu and Malkhan. She claims to be an eye-witness and has deposed that Ramswaroop and Ramcharan both had given Gadasi blows on the head of Pappu. The first blow was given by Ramswaroop and the subsequent blow was given by Ramcharan. In paragraph 4, she has deposed that the incident was witnessed by Babu, Prithvi and Ramprasad. In paragraph 7 of her crossexamination, she has deposed that when Ramswaroop had given Gadasi blow, at that time Pappu was sitting while putting fencing. When Ramcharan gave the blow, he fell down. She has further deposed that Pappu had received two injuries on his head. Similar deposition has been given by Babulal (PW6) and complainant Ramprasad (PW12), who has proved the FIR (Ex.P/37). However, in paragraph 12 of his cross-examination, Ramprasad has deposed that the first Gadasi blow was given by Ramcharan. Pappu had not fallen after receiving Gadasi injury from Ramcharan but fell due to subsequent blow given by Ramswaroop. Learned trial Court has rightly appreciated the evidence in this behalf in paragraphs 25 and 26 of the impugned judgment while relying upon the evidence of Prithviraj (PW3) whose presence on spot has been proved by injured witness Malkhan (PW2) and disbelieving the evidence of Gullobai (PW5) and Babulal (PW6). 12. Shreepal (PW13) is the brother of deceased Pappu. He has deposed that he had gone for grazing goats and came to know about the incident in the evening after returning from Jungle. 13. Ashok Singh Tomar (PW14) is the Investigating Officer. 12. Shreepal (PW13) is the brother of deceased Pappu. He has deposed that he had gone for grazing goats and came to know about the incident in the evening after returning from Jungle. 13. Ashok Singh Tomar (PW14) is the Investigating Officer. He has proved FIR (Ex.P/37), sending of injured persons for MLC (Ex.P/1 & P/4), spot map (Ex.P/38), seizure of simple and blood stained soil from the spot (Ex.P/9), morgue intimaton (Ex.P/41), arrest memos of accused persons and other prosecution documents. In paragraph 21 of his crossexamination, he has deposed that a cross-case was registered at Crime No. 22/99 at the instance of Ramesh S/o Balwant who claimed to have seen the incident. In paragraph 24, he has deposed that statement of Malkhan was recorded after about a month though he had tried to record the same on as many as three occasions but could not meet him. This witness was subjected to extensive cross-examination, but nothing exculpatory could be elicited in his evidence. 14. Ramesh (DW1) has been examined in defence. He claims to have witnessed the incident and has deposed that Malkhan and Pappu were putting fencing on the land of Ramcharan. When Ramcharan and Brajesh asked them to stop, then Pappu and Malkhan called Gulab, Birbal, Shripal, Munna and Gote. Pappu gave a Pharsa blow on the head of Ramcharan from behind. Malkhan gave a Pharsa blow on the right hand of Ramcahran, while Shripal gave a Pharsa blow on the left leg of Brajesh. Shripal was wielding Pharsa on Ramcharan but as Ramcharan bent to ditch, it hit Pappu on his head. The evidence of this witness has rightly not been relied upon by the learned trial Court for the reasons recorded in paragraph 27 of the impugned judgment. 15. In view of the aforesaid, we are of the considered view that the learned trial Court has threadbare appreciated the evidence and recorded cogent and impregnable findings with regard to complicity of the appellant in the crime. 16. This brings us to the question as to what was the nature of offence committed by the appellant. 17. It can easily be discerned from the prosecution story as unfolded during trial and the evidence brought on record that the incident occurred when deceased and Malkhan were putting fencing in their Courtyard. 16. This brings us to the question as to what was the nature of offence committed by the appellant. 17. It can easily be discerned from the prosecution story as unfolded during trial and the evidence brought on record that the incident occurred when deceased and Malkhan were putting fencing in their Courtyard. The appellant forbade them from doing so and on their denial an altercation ensued, in the course of which, fatal blow was given by the appellant. Thus the element of premeditation to commit homicidal death of deceased cannot be attributed to the appellant and it can easily be discerned that the death was caused in a sudden fight in the heat of passion upon a sudden quarrel, or in other words, the act of the appellant squarely falls within Exception 4 as appended to S.300 of the IPC. It is also to be noted that as per medical evidence, it is a case of single fatal blow on the head of deceased by the appellant and thus it cannot be said that the appellant had the intention of causing death though he certainly possessed the knowledge that it was likely to cause death. Thus, in our opinion, the act of the appellant falls within the ambit of S.304 Part II of the IPC. 18. As regards sentence, the incident is of the year 1999 and about 23 years have elapsed. Appellant, who is now 81 years of age, has suffered about two years and four months of custody. During this period he has suffered the ordeal of trial and appeal. We do not think that at this stage any useful purpose would be served by sending him back to jail and, in our considered opinion, the custodial sentence deserves to be reduced to the period already undergone, following the principles of law laid down by the apex Court in Mohinder Pal Jolly (supra), Yogendra Morarji (supra), Sarup Singh (supra), and Kuldeep Singh (supra), wherein for conviction under S.304 of the IPC, the custodial sentences were reduced to the period already undergone ranging from six months to two years. Accordingly, the conviction of the appellant from section 302 of the IPC is altered to one under section 304 Part II of the IPC and the custodial sentence is reduced to the period already undergone although the fine sentence with corresponding default stipulation, as awarded by the trial Court, is maintained. Appellant is on bail. He is directed to deposit the fine amount, if not already deposited, within fifteen days from today failing which he shall undergo the default sentence as awarded by the trial Court. A copy of this order along with the record of the trial Court be sent to the trial Court for compliance.