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Court No.48

CRIMINAL APPEAL No.535 of 1987

1.Ram Shankar

2.Onkar

3.Mahadeo (Dead)

4.Rajeshwar

5.Tirath (Dead)

6.Laxmi

7.Ashok

8.Ram Bhabhuti (Dead)

9.Bhadeshwar

10.Parmatma (Dead)

..........Appellants

Vs

State of Uttar Pradesh ..........Respondent

________________________________________________________

For Appellants : Sri S K Dubey, under the authority

of Sri S N Singh, Advocate.

For Respondent/State : Sri Amit Sinha, AGA

________________________________________________________

Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J.

Per: Pritinker Diwaker, J.

(24.9.2019)

This appeal arises out of impugned judgment and order dated

17.2.1987 passed by Vth Additional Sessions Judge, Basti in Sessions

Trial No.222 of 1984, convicting accused no.5-Tirath, accused no.6-

Laxmi, accused no.7-Ashok, accused no.8-Ram Bhabhuti, accused

no.9-Bhadeshwar and accused no.10-Parmatma under Sections 147,

323 read with Section 149 and Section 302 read with Section 149 of

IPC and sentencing them to undergo one month's RI; three months' RI

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and imprisonment for life respectively. Further, accused no.1-Ram

Shankar, accused no.2-Onkar, accused no.3-Mahadeo and accused

no.4-Rajeshwar have been convicted under Sections 148, 323 read

with Section 149 and Section 302 read with Section 149 of IPC and

sentenced to undergo one year's RI, three months' RI and

imprisonment for life respectively.

2.As per prosecution case, there were two groups in the village,

one was of 'Pandit' community, whereas the other group was of

'Harijan' community. As the later group had stopped working for the

first group, there was a dispute between the two and the proceedings

under Section 107 of Cr PC were initiated against both the groups.

Another outfall of the said dispute was that the second group was not

allowed to move freely in the village by the first group nor they were

permitted to fetch water from the Well. It is said that on 29.9.1982,

deceased Shiv Raj, who belonged to second group, was making some

arrangement to have separate Hand Pump and while doing so, he had

gone to the well of accused Ram Shankar and there some verbal

exchange had taken place. Soon thereafter, accused persons reached to

opposite group carrying different weapons with them and upon

exhortation being made by first accused Ram Shankar, they caused

injuries to Shiv Raj. When Piyare (PW-2) and Hanuman (PW-3) tried

to intervene in the matter, they were also subjected to injuries. In the

said incident, accused Laxmi and Ashok also suffered minor injuries.

After sustaining injuries, Shiv Raj expired at the place of occurrence

itself.

3.On the basis of written report Ex.Ka.1 lodged by (PW-1) Ram

Dawan, brother of the deceased, on 29.9.1982 FIR Ex.Ka.2 was

registered at 9:15 am against ten accused persons, namely, Ram

Shankar, Onkar, Mahadeo, Rajeshwar, Tirath, Laxmi, Ashok,

Parmatma, Bhadeshwar and Ram Bhabhuti under Sections 147, 148,

149, 323, 324, 504 and 302 of IPC.

4.Injured Hanuman (PW-3) was medically examined vide Ex.Ka.8

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and the following injuries were noticed by the Doctor:

"(i)Lacerated wound - 5.52 x 1 cm x bone deep on the left

side of Head, vertically placed 9 cm above left ear. Bleeding

present.

(ii)LW - 4 cm x 0.4 cm x muscle deep on the Rt. side of

Head, 5 cm above Rt eyebrow. Bleeding present.

(iii)Contusion swelling - 6 cm x 4 cm on the Rt. side of

face, just below the lower eyelid, Below canthus."

Other injured Piyare (PW-2) was also medically examined, vide

Ex.Ka.9 and the following injuries were noticed by the Doctor:

"(i)LW - 5.52 x 0.52 cm x muscle deep, on the left side of

Head, 9 cm above eyelid. Bleeding present.

(ii)Traumatic Swelling - 12 cm x all round Rt. forearm, 4

cm below the elbow.

(iii)Traumatic Swelling - 10 cm x all around Rt. forearm,

11 cm below injury no.(ii)."

5.Inquest on the dead body of the deceased was conducted vide

Ex.Ka.6 on 29.9.1982 and the body was sent for postmortem which

was conducted on 30.9.1982, vide Ex.Ka.7 by (PW-5) Dr A K

Mehrotra.

As per Autopsy Surgeon, following injuries were noticed on the

body of the deceased:

1.Lacerated wound 5 cm x 1.5 cm x bone deep on back of

skull 2 cm front of site of choti (pksVh). Obliquely present.

2.Lacerated wound 5.5 cm x 1.5 cm x bone deep on Rt parieto

temporal region of skull 6 cm above right ear. Obliquely

present.

3.Incised wound with clear cut margins (as seen with lens) on

right side front of skull extending to forehead – size 5 cm x 1

cm x bone deep. Flesh of skull bone is seen cut through the

wound.

4.Lacerated wound – 3.5 cm x 0.6 cm x bone deep on dorsum of

the middle finger of left hand.

5.Contusion 9 cm x 2.5 cm outer front of right shoulder.

6. Multiple contusion on area of 15 cm x 12 cm on back of lower

half of the side of chest area. Biggest size of contusion is 9 cm

x 2.4 cm and smallest of size 6 cm x 1.6 cm.

7.Contusion – 12 cm x 2.5 cm on back of upper inner part of

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right thigh.

8.Contusion – 7.8 cm x 2 cm on back of left shoulder.

9.Contusion 9 cm x 2.2 cm on the back of middle 1/3 of

left leg.”

Cause of death of the deceased was shock, haemorrhage and

coma as a result of ante-mortem injuries.

6.While framing charge, the trial Judge has framed charge against

accused Tirath, Laxmi, Ashok, Parmatma, Bhadeshwar and Ram

Bhabhuti under Sections 147, 302/149 and 323/149 of IPC, whereas

against accused Ram Shankar, Onkar, Mahadeo and Rajeshwar charge

was framed under Sections 148, 302/149 and 323/149 of IPC.

7.So as to hold accused persons guilty, the prosecution has

examined eight witnesses, whereas one defence witness has also

been examined. Statements of accused persons were also recorded

under Section 313 of Cr PC in which, they pleaded their

innocence and false implication.

8.By the impugned judgment, the trial Judge has convicted

and sentenced the accused persons as mentioned in para 1 of this

judgment. During pendency of the present appeal, accused no.7-

Ashok has been declared juvenile, whereas accused no.3-Mahadeo,

accused no.5-Tirath, accused no.8-Ram Bhabhuti and accused no.10-

Parmatma have expired and the appeal in their respect has already

been abated. At present, this appeal is confined in respect of accused

no.1-Ram Shankar, accused no.2-Onkar, accused no.4-Rajeshwar,

accused no.6-Laxmi, accused no.7-Ashok and accused no.9-

Bhadeshwar.

9.Counsel for the appellants submits:

(i)that the FIR is ante-dated.

(ii)that motive part has not been proved by the prosecution.

(iii)that (PW-1) Ram Dawan, (PW-2) Piyare and (PW-3)

Hanuman are not the reliable witnesses.

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(iv)that it is the victim party who was aggressor and,

therefore, the accused persons had every right to save

themselves from the marpeet started by the victim party.

Learned counsel submits that the accused persons have caused

injury in their self-defence and thus, they cannot be convicted.

(v)that under no stretch of imagination, offence under

Section 302 of IPC is made out against the accused persons and,

at best, they are liable to be convicted under Section 304 Part II

of IPC. It has been argued that the incident occurred in the year

1982, i.e. 37 years back, some of the accused have already

expired, remaining accused persons are willing to compensate

the victim's family and, therefore, a lenient view be taken while

awarding sentence to them.

10.On the other hand, supporting the impugned judgment and

order, it has been argued by the State Counsel that the conviction of

the accused persons is in accordance with law and there is no infirmity

in the same. He submits that (PW-2) Piyare and (PW-3) Hanuman are

the injured eye-witnesses and they have duly supported the

prosecution case. The prosecution case has been further proved by the

medical report of (PW-2) Piyare and (PW-3) Hanuman and likewise,

postmortem report of the deceased. State counsel further submits that

complainant party was not aggressor and in the evidence, it has come

that it is the accused persons who were aggressor. He submits that

right of private defence of a person or property is not available to the

accused persons once the eye-witnesses have stated that it is they who

caused injury first. He submits that even otherwise, the accused

persons have exceeded their right and, therefore, it cannot be said that

they are not liable to be convicted for any offence.

11.We have heard learned counsel for the parties and perused the

record.

12. (PW-1) Ram Dawan, is a brother of the deceased and lodger of

FIR, Ex. Ka.2. While supporting the prosecution case, he has stated

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that on the date of incident at about 8:00 am, deceased had gone to

fetch water from the well of accused no.1 Ram Shankar. However, he

was not allowed to do so and was abused by Ram Shankar. He states

that deceased Shiv Raj returned to his place after abusing the other

group. He further states that soon thereafter, all the accused persons

reached there carrying different weapons with them and upon being

exhorted by accused no.1 Ram Shankar and accused no.8-Ram

Bhabhuti, other accused persons chased the deceased Shiv Raj and

after surrounding him, caused number of injuries to him. To save Shiv

Raj, (PW-2) Piyare and (PW-3) Hanuman and other persons rushed to

him, however, they too had suffered injuries. After sustaining injury,

Shiv Raj expired at the place of occurrence itself. In paragraph no.3,

he has stated that there were two groups in the village, one belongs to

the appellants party, whereas the other was of Harijan group and that

there was tension in the village over payment of wages to the second

group after which, proceedings under Section 107 Cr PC were also

initiated. In the lengthy cross-examination, this witness has remained

firm and has reiterated as to the manner in which the incident

occurred.

13.(PW-2) Piyare, is an injured witness to the incident, has duly

supported the prosecution case and his statement is almost similar to

that of (PW-1) Ram Dawan. He states that in the local body election,

one Jagdev, from the side of accused persons, defeated one Ram Sahai

Chaudhary. He has further stated that on the date of incident when the

accused persons were cutting their crops, it is his group who made

assault and from the side of accused, Laxami and Ashok suffered

injuries and when the accused persons were trying to save themselves,

from the side of complainant some persons suffered injuries. He

further states that in a cross case, he has also been joined as an

accused.

14.(PW-3) Hanuman, is the other injured eye-witness to the

incident, has also duly supported the prosecution case.

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15.(PW-4) Wakar Husain, is the Investigating Officer, has duly

supported the prosecution case.

16.(PW-5) Dr. A.K. Mehrotra, did the postmortem of the deceased

vide Ex. Ka. 7.

17.(PW-6) Lal Bahadur Singh and (PW-7) Gomti Prasad assisted

during investigation.

18.(PW-8) Dr. G.P. Agarwal, did MLC of (PW-2) Piyare and (PW-

3) Hanuman, vide Ex. Ka. 8 and 9 respectively. He further states that

accused Laxmi and Ashok had also suffered minor injuries.

19.According to (DW-1) Dr. S.K. Srivastava, accused Laxmi has

suffered fracture of metacarpel.

20.Close scrutiny of the evidence makes it clear that there were two

groups in the village, Chapiya Majhariya, one headed by the accused

persons and the other was of Harijans, of which deceased Shiv Raj

was a member. There was a dispute in the village over payment of

wages to the second group and the legal proceedings were also

initiated against both the parties. On the date of incident, deceased

Shiv Raj had gone to fetch water from the well of accused no.1-Ram

Shankar and they abused each other. Soon thereafter, accused persons

apprehended Shiv Raj and there was an incident of marpeet between

two groups. In the incident, from the second group, Shiv Raj

(deceased), Piyare (PW-2) and Hanuman (PW-3) suffered injuries,

whereas from the side of accused persons, accused Laxmi and Ashok

also suffered injuries. The incident has been witnessed by (PW-1) Ram

Dawan, (PW-2) Piyare and (PW-3) Hanuman and all three witnesses

have duly supported the prosecution case and we have no reason to

disbelieve their statements. Likewise, injured Laxmi and Ashok had

also suffered injuries and their injuries have also been admitted by the

doctor who treated them.

Considering the statements of witnesses, complicity of the

accused persons in commission of offence has been duly proved and

thus, they are liable to be convicted for the murder of Shiv Raj and

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injuries to Hanuman and Piyare.

21.The next question which arises for consideration of this Court is

as to whether the act of accused persons would fall within the

definition of 'murder' or it would be 'culpable homicide not amounting

to murder'. Before proceeding further, it is relevant to refer to the

provisions of Section 300 of IPC, which read as under:

“300.Murder. – Except in the cases hereinafter excepted,

culpable homicide is murder, if the act by which the death is caused

is done with the intention of causing death, or-

Secondly. – If it is done with the intention of causing such

bodily injury as the offender knows to be likely to cause the death of

the person to whom the harm is caused, or -

Thirdly. – If it is done with the intention of causing bodily

injury to any person and the bodily injury intended to be inflicted is

sufficient in the ordinary course of nature to cause death, or -

Fourthly. - If the person committing the act knows that it is so

imminently dangerous that it must, in all probability, cause death or

such bodily injury as is likely to cause death, and commits such act

without any excuse for incurring the risk of causing death or such

injury as aforesaid.

Exception 1. - When culpable homicide is not murder. -

Culpable homicide is not murder if the offender, whilst

deprived of the power of self-control by grave and sudden

provocation, causes the death of the person who gave the

provocation or causes the death of any other person by mistake or

accident.

The above Exception is subject to the following provisos:-

First. - That the provocation is not sought or voluntarily

provoked by the offender as an excuse for killing or doing harm to

any person.

Secondly. - That the provocation is not given by anything done

in obedience to the law, or by a public servant in the lawful exercise

of the powers of such public servant.

Thirdly. - That the provocation is not given by anything done

in the lawful exercise of the right of private defence.

Explanation. - Whether the provocation was grave and sudden

enough to prevent the offence from amounting to murder is a

question of fact.

Exception 2. - Culpable homicide is not murder if the offender,

in the exercise in good faith of the right of private defence of person

or property, exceeds the power given to him by law and causes the

death of the person against whom he is exercising such right of

defence without premeditation, and without any intention of doing

more harm than is necessary for the purpose of such defence.

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Exception 3. - Culpable homicide is not murder if the offender,

being a public servant or aiding a public servant acting for the

advancement of public justice, exceeds the powers given to him by

law, and causes death by doing an act which he, in good faith,

believes to be lawful and necessary for the due discharge of his duty

as such public servant and without ill-will towards the person whose

death is caused.

Exception 4. - 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.

Exception 5. - Culpable homicide is not murder when the

person whose death is caused, being above the age of eighteen years,

suffers death or takes the risk of death with his own consent."

Exception 4 to Section 300 of the IPC applies in the absence of

any premeditation. This is very clear from the wordings of the

Exception itself. The exception contemplates that the sudden fight

shall start upon the heat of passion on a sudden quarrel. The fourth

exception to Section 300 IPC covers acts done in a sudden fight. The

said Exception deals with a case of provocation 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 mens'

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

an 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 could in such cases the whole

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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 offenders 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

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 had 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 must further be

shown that the offender has not taken undue advantage or acted in a

cruel or unusual manner. The expression “undue advantage” as used in

the provision means “unfair advantage”.

22.The Apex Court in State of A.P. vs. Rayavarapu Punnayya

and Another

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while drawing a distinction between Section 302 and

Section 304 of IPC held as under:

“12. In the scheme of the Penal Code, “culpable homicide”

is genus and “murder” its specie. All “murder” is “culpable

homicide” but not vice-versa. Speaking generally, “culpable

1(1976) 4 SCC 382

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homicide” sans “special characteristics of murder”, is

“culpable homicide not amounting to murder”. For the

purpose of fixing punishment, proportionate to the gravity of

this generic offence, the Code practically recognises three

degrees of culpable homicide. The first is, what may be called,

“culpable homicide of the first degree”. This is the greatest

form of culpable homicide, which is defined in Section 300 as

“murder”. The second may be termed as “culpable homicide

of the second degree”. This is punishable under the first part

of Section 304. Then, there is “culpable homicide of the third

degree”. This is the lowest type of culpable homicide and the

punishment provided for it is, also, the lowest among the

punishments provided for the three grades. Culpable homicide

of this degree is punishable under the second part of Section

304.

21. From the above conspectus, it emerges that whenever a

court is confronted with the question whether the offence is

“murder” or “culpable homicide not amounting to murder”, on

the facts of a case, it will be convenient for it to approach the

problem in three stages. The question to be considered at the

first stage would be, whether the accused has done an act by

doing which he has caused the death of another. Proof of such

causal connection between the act of the accused and the

death, leads to the second stage for considering whether that

act of the accused amounts to “culpable homicide” as defined

in Section 299. If the answer to this question is prima facie

found in the affirmative, the stage for considering the

operation of Section 300 of the Penal Code, is reached. This is

the stage at which the court should determine whether the

facts proved by the prosecution bring the case within the ambit

of any of the four clauses of the definition of “murder”

contained in Section 300. If the answer to this question is in

the negative the offence would be “culpable homicide not

amounting to murder”, punishable under the first or the

second part of Section 304, depending, respectively, on

whether the second or the third clause of Section 299 is

applicable. If this question is found in the positive, but the

case comes within any of the exceptions enumerated in

Section 300, the offence would still be “culpable homicide not

amounting to murder”, punishable under the first part of

Section 304, of the Penal Code.”

In Budhi Singh vs. State of Himachal Pradesh

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, the Supreme

Court held as under:

18. The doctrine of sudden and grave provocation is

incapable of rigid construction leading to or stating any

principle of universal application. This will always have to

depend on the facts of a given case. While applying this

principle, the primary obligation of the court is to examine

from the point of view of a person of reasonable prudence if

there was such grave and sudden provocation so as to

2(2012) 13 SCC 663

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reasonably conclude that it was possible to commit the offence

of culpable homicide, and as per the facts, was not a culpable

homicide amounting to murder. An offence resulting from

grave and sudden provocation would normally mean that a

person placed in such circumstances could lose self-control

but only temporarily and that too, in proximity to the time of

provocation. The provocation could be an act or series of acts

done by the deceased to the accused resulting in inflicting of

injury.

19. Another test that is applied more often than not is that the

behaviour of the assailant was that of a reasonable person. A

fine distinction has to be kept in mind between sudden and

grave provocation resulting in sudden and temporary loss of

self-control and the one which inspires an actual intention to

kill. Such act should have been done during the continuation

of the state of mind and the time for such person to kill and

reasons to regain the dominion over the mind. Once there is

premeditated act with the intention to kill, it will obviously

fall beyond the scope of culpable homicide not amounting to

murder....."

In Kikar Singh vs. State of Rajasthan

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the Apex Court held as

under:

“8. The counsel attempted to bring the case within

Exception 4. For its application all the conditions enumerated

therein must be satisfied. The act must be committed without

premeditation in a sudden fight in the heat of passion; (2)

upon a sudden quarrel; (3) without the offender’s having taken

undue advantage; (4) and the accused had not acted in a cruel

or unusual manner. Therefore, there must be a mutual combat

or exchanging blows on each other. And however slight the

first blow, or provocation, every fresh blow becomes a fresh

provocation. The blood is already heated or warms up at every

subsequent stroke. The voice of reason is heard on neither side

in the heat of passion. Therefore, it is difficult to apportion

between them respective degrees of blame with reference to

the state of things at the commencement of the fray but it must

occur as a consequence of a sudden fight i.e. mutual combat

and not one side track. It matters not what the cause of the

quarrel is, whether real or imaginary, or who draws or strikes

first. The strike of the blow must be without any intention to

kill or seriously injure the other. If two men start fighting and

one of them is unarmed while the other uses a deadly weapon,

the one who uses such weapon must be held to have taken an

undue advantage denying him the entitlement to Exception 4.

True the number of wounds is not the criterion, but the

position of the accused and the deceased with regard to their

arms used, the manner of combat must be kept in mind when

applying Exception 4. When the deceased was not armed but

the accused was and caused injuries to the deceased with fatal

results, the Exception 4 engrafted to Section 300 is excepted

3(1993) 4 SCC 238

13

and the offences committed would be one of murder.

9. The occasion for sudden quarrel must not only be sudden

but the party assaulted must be on an equal footing in point of

defence, at least at the onset. This is specially so where the

attack is made with dangerous weapons. Where the deceased

was unarmed and did not cause any injury to the accused even

following a sudden quarrel if the accused has inflicted fatal

blows on the deceased, Exception 4 is not attracted and

commission must be one of murder punishable under Section

302. Equally for attracting Exception 4 it is necessary that

blows should be exchanged even if they do not all find their

target. Even if the fight is unpremeditated and sudden, yet if

the instrument or manner of retaliation be greatly

disproportionate to the offence given, and cruel and dangerous

in its nature, the accused cannot be protected under Exception

4...."

23.All the above three cases were considered by the Apex Court in

Surain Singh v The State of Punjab

4

and ultimately, it has been held

by the Apex Court in that particular case, that the accused was liable to

be convicted under Section 304 Part II of IPC and not under Section

302 of IPC.

24.In Ranjitham v Basavaraj

5

., the Supreme Court, while dealing

with the similar issue, observed in paragraphs 28, 29, 30 and 31 as

under:

"28. In Hari Ram vs. State of Haryana, (1983) 1 SCC 193,

there was an altercation between the appellant and the

deceased. The appellant had remarked that the deceased must

be beaten to make him behave. He thereafter ran inside the

house, brought out a jelly and thrust it into the chest of the

deceased. This Court observed that in the heat of altercation

between the deceased on the one hand, and the appellant and

his comrades on the other, the appellant seized a jelly and

thrust it into the chest of the deceased. This was preceded by

his remark that the deceased must be beaten to make him

behave. Therefore, it does not appear that there was any

intention to kill the deceased. This Court, therefore, set aside

the conviction of the appellant under Section 302 IPC and

instead convicted him under Section 304 Part II IPC and

sentenced him to suffer rigorous imprisonment for five years.

29. In Jagtar Singh vs. State of Punjab, (1983) 2 SCC 342, in

a trivial quarrel the appellant wielded a weapon like a knife

and landed a blow on the chest of the deceased. This Court

observed that the quarrel had taken place on the spur of the

4Criminal Appeal No.2284 of 2009, decided on April 10, 2017.

5Criminal Appeal No.1453 of 2005 (decided on 28.11.2011)

14

moment. There was exchange of abuses. At that time, the

appellant gave a blow with a knife which landed on the chest

of the deceased and therefore, it was permissible to draw an

inference that the appellant could be imputed with a

knowledge that he was likely to cause an injury which was

likely to cause death but since there was no premeditation, no

intention could be imputed to him to cause death. This Court,

therefore, convicted the appellant under Section 304 Part II

IPC instead of Section 302 IPC and sentenced him to suffer

rigorous imprisonment for five years.

30. In Hem Raj v. The State (Delhi Administration), 1990

Supp. SCC 291, the appellant and the deceased had suddenly

grappled with each other and the entire occurrence was over

within a minute. During the course of the sudden quarrel, the

appellant dealt a single stab which unfortunately landed on the

chest of the deceased resulting in his death. This Court

observed that (SCC p. 295, para 14) as the totality of the

established facts and circumstances show that the occurrence

had happened most unexpectedly, in a sudden quarrel and

without premeditation during the course of which the

appellant caused a solitary injury to the deceased, he could not

be imputed with the intention to cause death of the deceased,

though knowledge that he was likely to cause an injury which

is likely to cause death could be imputed to him. This Court,

therefore, set aside the conviction under Section 302 IPC and

convicted the appellant under Section 304 Part II IPC and

sentenced him to undergo rigorous imprisonment for seven

years.

31. In V. Subramani, (2005) 10 SCC 358, there was some

dispute over grazing of buffaloes. Thereafter, there was

altercation between the accused and the deceased. The accused

dealt a single blow with a wooden yoke on the deceased.

Altering the conviction from Section 302 IPC to Section 304

Part II IPC, this Court clarified that it cannot be laid down as a

rule of universal application that whenever death occurs on

account of a single blow, Section 302 IPC is ruled out. The

fact situation has to be considered in each case. Thus, the part

of the body on which the blow was dealt, the nature of the

injury and the type of the weapon used will not always be

determinative as to whether an accused is guilty of murder or

culpable homicide not amounting to murder. The events which

precede the incident will also have a bearing on the issue

whether the act by which death was caused was done with an

intention of causing death or knowledge that it is likely to

cause death but without intention to cause death. It is the

totality of circumstances which will decide the nature of the

offence."

25.Applying the above principle of law in the present case, it is

apparent that the offence has been committed without there being any

15

premeditation in a sudden fight in the heat of passion upon a sudden

quarrel. Facts also disclose that the accused persons have not taken

any undue advantage or acted in a cruel or unusual manner. Thus, the

case of the accused persons would fall under Exception 4 of Section

300 of IPC, i.e.'culpable homicide not amounting to murder'.

26.The next question, which arises for consideration of this Court,

is as to whether the accused persons are liable to be convicted under

Section 304 Part-I or Part-II of IPC.

Considering the fact that at the spur of moment, the incident

occurred and as a result thereof, injuries have been caused to the

deceased as well as the injured and further considering the statements

of three eye-witnesses, it can safely be held that the accused persons

are liable to be convicted under Section 304 Part-II of IPC.

27.Another question, which arises for consideration of this Court,

is as to what would be the appropriate sentence to be imposed upon

the accused appellants.

Having considered the facts that the incident occurred 37 years

back; out of 10 accused persons, four have already expired and one

has been declared juvenile and the accused appellants are willing to

compensate the family of the deceased, we are of the considered view

that, in the peculiar facts and circumstances of the case, ends of justice

would be served, if the accused appellants, except accused no.7-

Ashok, are sentenced to five years rigorous imprisonment. Order

accordingly.

However, looking to the provisions of Section 357 of Cr PC and

the judgment of the Apex Court in Ankush Shivaji Gaikwad v State

of Maharashtra

6

, we are of the view that the accused-appellants are

liable to compensate the victim's family by paying a total

compensation of Rs.1,50,000/- (One Lakh Fifty Thousand Only) under

Section 357 of Cr PC. Accordingly, accused-appellants, Ram Shankar,

Onkar, Rajeshwar, Laxmi and Bhadeshwar are directed to pay

6(2013) 6 SCC 770

16

monetary compensation of Rs. 30,000/- each to the victim's family.

Let this amount be deposited before the concerned Court below

within two years from today. After depositing the aforesaid amount

before the concerned Court below, it shall be paid to the wife of

deceased Shiv Raj, if surviving, or to his legal heirs. In case, the

accused appellants fail to deposit the said amount of compensation

within the aforesaid time, they shall undergo additional jail sentence of

one year and the Court below shall proceed to recover the amount of

compensation in the light of judgment of the Apex Court reported in

Kumaran Vs State of Kerala and another

7

.

28.So far as the question of sentence to be imposed upon accused

no.7-Ashok is concerned, his case is referred to the concerned Juvenile

Justice Board to pass appropriate orders, as he has already been

declared a juvenile by the Board.

29.Since the accused-appellants are reported to be on bail, they be

taken into custody forthwith for serving remaining sentence in terms

of this judgment.

30.Let a copy of this judgment be sent to the concerned trial Court

forthwith for compliance.

31.The appeal is partly allowed.

Date:24.9.2019

RKK/-A.Tripathi

(Raj Beer Singh, J) (Pritinker Diwaker, J)

7(2017) 7 SCC 471