As per case facts, on 16.07.2000, accused were demolishing their gate's pillar when the complainant party intervened. A sudden fight ensued. Varinder Kumar inflicted a fatal head injury on Jaswant ...
CRA-D-156-DB-2004 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D-156-DB-2004 (O&M)
Date of Decision: 13.05.2025
VARINDER KUMAR @ BINDER @ RAVINDER KUMAR & OTHERS
... Appellants
Versus
STATE OF PUNJAB
...Respondent
CORAM: HON’BLE MR. JUSTICE GURVINDER SINGH GILL
HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. Vinod Ghai, Sr. Advocate with
Mr. Arnav Ghai, Advocate
Ms. Kashish Sahni, Advocate and
for the appellant.
Mr. Siddhart Attri, Asstt. A.G., Punjab.
****
JASJIT SINGH BEDI, J.
The present appeal has been filed against the judgment of
conviction and order of sentence dated 14/19.01.2004 passed by the Addl.
Sessions Judge, Kapurthala.
2. The FIR was registered on 17.07.2000, the judgment of
conviction and order of sentence passed by the Addl. Sessions Judge,
Kapurthala is dated 14/19.01.2004, the appeal was filed on 09.02.2004 and
the matter is being taken up for hearing now i.e. after a period of more than
24 ½ years from the date of registration of the FIR.
3. The facts, in brief are that Amandeep Singh alias Banti S/o Beant
Singh, was a permanent resident of Mohalla Kurla, Railway Road, Sultanpur
Lodhi. Rajinder Kumar alias Pappu, Binder Kumar alias Binder, Gulshan
CRA-D-156-DB-2004 (O&M) -2-
Kumar and Harsh Kumar alias Happy, were residing in their neighbourhood,
with their family members. They had installed their gate in the courtyard of
the house of Amandeep Singh. On 16.07.2000, at about 11 p.m., Rajinder
Kumar alias Pappu and the other accused, were demolishing the pillar of
their gate, when Amandeep Singh and his family members, heard the noise of
demolition, as result whereof, Jaswant Kaur mother, Beant Singh father,
Narinder Kaur alias Pinki aunt of Amandeep Singh and he came outside their
rooms. They stopped Rajinder Kumar and other accused from demolishing
the pillar of the gate, upon which Rajinder Kumar alias Pappu raised an
exhortation that Amandeep Singh and his companions, be caught hold of and
be taught a lesson, for stopping them from demolishing the pillar of their
gate. In the meanwhile, Urmila wife of Jagdish Ram and Sonia Rani wife of
Rajinder Kumar alias Pappu, grappled with Jaswant Kaur and Narinder Kaur.
Binder Kumar alias Binder, gave an iron rod blow, on the head of Jaswant
Kaur. Gulshan Kumar gave an iron rod blow, on the right arm of Narinder
Kaur, as result whereof, the same got fractured. Adarsh Kumar @ Harsh
Kumar @ Happy caused injuries with an iron rod, on the person of
Amandeep Singh and his father Beant Singh. Thereafter, an alarm was raised
by Amandeep Singh and other injured, as a result whereof, a number of
persons, from the neighbourhood, assembled at the spot. On seeing them,
Rajinder Kumar alias Pappu and his co-accused, fled from the spot, with their
respective weapons.
4. Blood in sufficient quantity, had oozed out of the injury on the
head of Jaswant Kaur, and she fell down. Amandeep Singh and his father
CRA-D-156-DB-2004 (O&M) -3-
Beant Singh, arranged a vehicle, and took her to the Civil Hospital, Sultanpur
Lodhi. Since, the condition of Jaswant Kaur, was serious, the doctor advised
that she be taken to some better hospital. Beant Singh, father of Amandeep
Singh, left with Jaswant Kaur and Narinder Kaur, for another hospital,
whereas, Amandeep Singh went to lodge the report. Iqbal Singh, ASI, P.S.
Sultanpur Lodhi, met him at bus stand, Sultanpur Lodhi, and he made his
statement, which was recorded. The statement, Ex. PM, was read over and
explained to him and after admitting the same to be correct, he signed it.
Endorsement, Ex. PM/1, was appended thereon and the same was sent to the
Police Station for the registration of the case, through Dharam Pal,
Constable, on the basis whereof, formal FIR, Ex. PM/2, was recorded by
Davinder Singh, ASI. The special report. Ex. PM/3, was delivered to the
Illaqa Magistrate.
5. On that day, a chit, Ex. PE, had been received, from Civil
Hospital, Sultanpur Lodhi, by Iqbal Singh, ASI, when he was in the Police
Station, regarding the admission of Jaswant Kaur wife of Beant Singh,
resident of Railway Road, Sultanpur Lodhi. Iqbal Singh, ASI, and the
complainant, alongwith other police officials, proceeded to the Civil
Hospital, Sultanpur Lodhi and moved an application, Ex. PF, as to whether,
Jaswant Kaur was fit to make a statement. The doctor, vide his endorsement,
Ex. PF/1, informed that she had been referred to higher institute, for
treatment. Thereafter, Iqbal Singh, ASI, Singh accompanied by Amandeep
Singh PW, went to the place of occurrence. Some other persons were also
joined. In the presence of Amandeep Singh and other persons, the place of
CRA-D-156-DB-2004 (O&M) -4-
occurrence, was inspected. The rough site plan, Ex. PT, was prepared, with
correct marginal notes. Blood stained earth was lifted, from the spot, which
was converted into a parcel, sealed with the seal, bearing impression 'IS’ and
taken into possession, vide recovery memo, Ex. PN, attested by Faqir Chand,
HC and Amandeep Singh PW. The supplementary statement of Amandeep
Singh, was recorded. Thereafter, Iqbal Singh, ASI, was returning to the
Police Station and when, he reached at Jhatghai Chowk, Sultanpur Lodhi,
Anup Singh, Punjab Home Guard volunteer met him and produced before
him, a chit, Ex. PG, informing about the death of Jaswant Kaur, He then
proceeded to the Civil Hospital, Sultanpur Lodhi, where, Anup Singh,
aforesaid, produced Ex.PV, a copy of the Daily Diary Entry, before Iqbal
Singh, ASI, according to which, the offence under Section 302 of the Indian
Penal Code, had also been added. Iqbal Singh, ASI, prepared the inquest
report, Ex. PD/2, of the dead body of Jaswant Kaur, which was lying in the
mortuary of the Civil Hospital, Sultanpur Lodhi, in the presence of Tarlochan
Singh and Parminder Singh, who identified the same. The Medical Officer
also handed over Ex. PH, Medico-legal Report of Narinder Kaur to Iqbal
Singh, ASI. He then moved an application, Ex. PV, to know about the fitness
of said Narinder Kaur, to make a statement. The Medical Officer made his
endorsement, Ex. PV/1, that she was fit to make a statement. The statement
of Narinder Kaur, was recorded, before conducting the inquest proceedings.
The dead body was handed over alongwith the police papers, including the
inquest report and application, Ex. PD, to Faqir Chand, HC and Dharam Pal,
Constable, for getting the post-mortem, conducted. Thereafter, Sarup Singh,
CRA-D-156-DB-2004 (O&M) -5-
SHO, P.S. Sultanpur Lodhi, reached the Old Hospital, Sultanpur Lodhi and
took over the investigation from Iqbal Singh, ASI.
6. On 17-7-2000, Sarup Singh, Sub Inspector/ SIIO, P.S. Sultanpur
Lodhi, took into possession, the clothes of deceased Jaswant Kaur, after the
post-mortem examination, which were handed over to him by Faqir Chand,
HC. The clothes consisted of one nighty-shirt, one trouser (Salwar) and one
underwear. These were converted into a sealed with the seal, bearing
impression ‘SS' and were taken into possession, vide recovery memo,
Ex.PW12/A, attested by Faqir Chand, HC.
7. On the same day, Urmila and Sonia Rani, accused, were arrested,
vide arrest memo, Ex. PX. Intimation with regard to their arrest, was given to
Gobind Ram.
8. On 21-7-2000, Surinder Singh, ASI, arrested Ravinder Kumar
and Adarsh Kumar @ Harsh Kumar @ Happy, accused. During investigation,
on 23-7-2000, Ravinder Kumar alias Binder, made a disclosure statement, to
the effect, that he had concealed an iron rod (Sabbal) in the Chubara, of his
residential house, in the area of Sultanpur Lodhi and he get the same
recovered. His disclosure statement, Ex.PQ was recorded, signed by him and
attested by Amrik Singh and Beant Singh, PWs. Thereafter, Harsh Kumar
accused was interrogated. He also made a disclosure statement that he had
concealed, an iron rod (Sabbal), in front of his house and which he could get
recovered. His disclosure statement Ex.PR, was recorded, which was signed
by him and attested by the aforesaid witnesses. In pursuance of his disclosure
statement, Ravinder Kumar alias Binder, accused, led the police party to the
CRA-D-156-DB-2004 (O&M) -6-
pre-disclosed place and got recovered iron rod (Sabbal), Ex. P3 and sketch
thereof Ex. PQ/2, was prepared. The said rod was taken into possession,
memo Ex. PQ/1, attested by Beant Singh and Amrik Singh, PWs. Thereafter,
Harsh Kumar accused, led the police party, to the pre-disclosed place and got
recovered iron rod (Sabbal), Ex. P.4, and sketch thereof, Ex. PR/2, was
prepared. The rod was taken into possession, vide recovery memo, Ex. PR/1,
attested by the aforesaid witnesses. The rough site plan, Ex. P13/A, of the
place of recovery, was prepared.
9. On 27-7-2000, Sarup Singh, Sub Inspector, arrested Rajinder
Kumar and Gulshan Kumar, accused, vide arrest memo, Ex. PW12/B and the
same was attested by Sudarshan Lal and signed by the accused.
On 31-7-2000, Gulshan Kumar, accused, was interrogated, who
disclosed that he had concealed one iron rod, in the Dussehra ground, near a
well, in the area of Sultanpur Lodhi and could get the same recovered. His
disclosure statement, Ex.PW12/C, was recorded by Sarup Singh, S1, which
was signed by him (Gulshan Kumar accused) and attested by Jasbir Singh,
HC. In pursuance of the disclosure statement, Gulshan Kumar, accused led
the police party, to the pre-disclosed place and got recovered an iron rod
(Sabbal), Ex. P1 and sketch thereof, Ex. P2, was prepared. The said rod was
taken into possession, vide recovery memo Ex. PO, attested by Amandeep
Singh and Jasbir Singh, Head Constable.
10. The statements of the prosecution witnesses, were recorded at
various stages of the investigation. The case property was also deposited with
the Moharir Head Constable, at various stages of the investigation. After the
CRA-D-156-DB-2004 (O&M) -7-
completion of investigation, the accused were challaned, for the offences,
punishable under Sections 148, 302, 302/149, 325, 325/149, 323, 323/149,
323 and 323/149 of the Indian Penal Code.
11. On commitment, charges were framed under Section 148 against
all the accused, under Section 302 IPC against Varinder Kumar alias Binder,
under Section 302 read with Section 149 IPC against the remaining accused,
under Section 325 IPC, against Gulshan Kumar and under Section 325 read
with Section 149 IPC, against the remaining accused, under Section 323 1PC
against Harsh Kumar alias Happy, for voluntarily causing simple hurt to
Beant Singh and under Section 323 read with Section 149 IPC against the
remaining accused, under Section 323 IPC, for voluntarily causing simple
hurt on the person of Amandeep Singh, against Harsh Kumar accused and
under Section 323 read with Section 149 IPC against the remaining accused.
The accused pleaded not guilty to the charge and claimed trial.
12. The prosecution in support of its case, examined as many as 14
witnesses. The gist of their statements is as under:-
PW1-Dr. Baljit Singh, Medical Officer, Civil Hospital, Sultanpur
Lodhi, on 17-7-2000, at 8.38 p.m.. medico-legally examined Beant Singh son
of Mehtab Singh, 55 years male, resident of Kurla Mohalla, Sultanpur Lodhi,
who was brought by Sarup Singh, Policeman, and found the following
injuries, on his person:-
1) A reddish blue contusion 3.5 cm x 1.5 cm lying horizontally oblique on
posterio medial aspect of left forearm. It was 7.5 cm from wrist joint. There
CRA-D-156-DB-2004 (O&M) -8-
was a small lacerated injury over the contusion with hard clotting. There
was no tenderness
2) A reddish blue contusion measuring 7 x 2.5 cm lying anterior
posteriorly on superior surface of right shoulder joint. Joint
movements were normal.
Both the injuries were declared simple in nature. The probable
duration of the injuries, was within 24 hours. The weapon used, was blunt for
both the injuries. He proved, Ex. PA, the correct carbon copy of the original
MLR, which was brought by him, and the pictorial diagram, Ex. PA/1,
showing the seats of injuries.
On the same day, at 9-10 p.m. he also medico-legally examined
Amandeep Singh son of Beant Singh, aged 27 years male, resident of Kurla
Mohalla, Sultanpur Lodhi, who was brought by Sarup Singh, ASI, and found
the following injuries, on his person:-
1) A long reddish blue contusion 8 x 1.5 cm lying along the
medial border of left forearm. It was 4 cm from wrist joint.
2) A small lacerated injury 1.5 x 0.3 cm muscle deep, lying
horizontally on left iliac region, 4 cm from left anterior
posterior illiac spine.
Both the injures were declared simple in nature and the probable
duration of the injuries, was within 24 hours. The kind of weapon used, was
blunt for both the injuries. He proved, Ex. PB, the correct carbon copy of the
original MLR, which he had brought, and Ex. PB/1, pictorial diagram,
showing the seats of the injuries.
PW2-Dr. Surinder Pal Surila, SMO, Civil Hospital, Sultanpur
Lodhi, conducted medico-legal examination, on 17-7-2000, at 1-45 a.m.
CRA-D-156-DB-2004 (O&M) -9-
(night), of Narinder Kaur wife of Pritpal Singh, aged 35 years, resident of
Railway Road, Sultanpur Lodhi, brought by Amandeep Singh and found the
following injury:-
1) A reddish contusion 6 x 3 cm covered by a diffused swelling of
10 x 6 cm on the back of right forearm in its lower half 10 cm
above the wrist joint. Crepitus was felt, unnatural movement of
the affected part was there and it caused server pain on moving
the part to her.
The nature of the injury, was kept under observation. The
probable duration of injury, was within 24 hours. The kind of weapon used,
was blunt. He proved, Ex PH, the correct carbon copy of the original MLR,
which he had brought and pictorial diagram, Ex.PH/1, showing the seat of
injury. On receipt of X-ray report of Dr. Mukesh Gupta, Radiologist, Civil
Hospital, Kapurthala, Ex. PJ/1 and the skiagram, Ex. PJ/2, he declared the
injury, on the person of Narinder Kaur, as grievous in nature. Dr. Mukesh,
Gupta, PW5, stated that on 18-7-2000, he conducted the X-ray examination
of Narinder Kaur and found fracture right radius in its lower 1/3rd of her
right forearm. He proved the X-ray report and skiagram.
PW2-Dr.Surinder Pal Surila also conducted the post-mortem
examination, on the dead body of Jaswant Kaur wife of Beant Singh, 47
years female, resident of Mohalla Kurla, Railway Road, Sultanpur Lodhi,
Distt. Kapurthala, on 17-7-2000, at 10-30 am. The same was brought by
Faqir Chand, Head Constable and Dharam Pal. The dead body was identified
by Tarlochan Singh and Dharminder Singh. It was dead body of a moderately
built and nourished woman, aged about 45/46 years. Rigor mortis was
CRA-D-156-DB-2004 (O&M) -10-
present in all four limbs. Bloody fluid was coming out of the nostrils and the
following injury was found on her person:-
1) A lacerated wound which was dressed measured 7 cm x 1 cm
on the left side of the head, 6 cm above the left pinna top and 10
cm above the outer end of left eye brow. The wound went
backward and medially reaching the midline of the head.
On Dissection: underlying bone was having depressed fracture
and a chip of the bone was thrust into the brain matter, piercing
the membranes. Cranial cavity contained blood. There was
haemotomma 5 cm x 5 cm having blackish clotted blood and
brain matter was torn underneath the injury. Base of skull was
fractured in its anterior and middle parts.
He proved, Ex. PC, correct carbon copy of the original
postmortem report brought by him, in the Court and Ex. PC/1, pictorial
diagram, showing the seat of injury. He further stated that the patient was
brought to the Civil Hospital, Sultanpur Lodhi, in a serious condition, on 16-
7-2000, at 11-40 p.m. and was referred to higher institution, as he was in a
serious condition and an intimation, with regard to the same, vide chit, Ex.
PE, was sent to the Police Station Sultanpur Lodhi. He also proved, Ex. PF,
the application, moved by the police of Police Station Sultanpur Lodhi and
endorsement, of Ex. PF/1, that Jaswant Kaur had been referred to some
higher institution. He further stated that after the death of Jaswant Kaur, her
dead body was brought to Civil Hospital, Sultanpur Lodhi, on 17-7-2000, at
1-45 a.m. and an information, Ex. PG, in this regard, was sent to the Police
Station Sultanpur Lodhi.
In the opinion of the doctor, the cause of death was shock and
CRA-D-156-DB-2004 (O&M) -11-
haemorrhage as a result of the injury, on the person of Jaswant Kaur and was
sufficient to cause death in the ordinary course of nature. The injury was
antemortem in nature. The probable time that lapsed, between the injury and
death was few hours and between death and post-mortem, was 6 to 24 hours.
After the post-mortem examination, the well stitched dead body alongwith its
belongings and the police papers, were handed over police.
Amandeep Singh, PW6, is one of the injured-cum-complainant.
The broad features of his testimony already stand narrated, while, summing
up the facts of the case, and need not be reiterated. Narinder Kaur, PW7, is
also one of the injured. She corroborated the statement of Amandeep Singh,
PW6, in all material particulars. Beant Singh, PW8, another injured, also
corroborated the statement of Amandeep Singh and Narinder Kaur.
Iqbal Singh, ASI, PW10, partly investigated this case. PW12-
Sarup Singh, SI/ SHO, P.S. Sultanpur Lodhi, at the relevant time also partly
investigated the case, whereas, PW13-Surinder Singh, SI also partly
investigated this case. The broad features of their testimony already stand
noticed, while summing up the facts of the case, and need not be reiterated
here.
Ravinderbir Singh, Constable, PW3, proved his affidavit, Ex.
PK. Sakattar Singh, HC, PW4, proved his affidavit, Ex. PL. Ranjit Singh,
Constable, PW9, proved his affidavit, Ex. PS. Faqir Chand, IIC, PW11,
proved his affidavit, Ex. PW11/A, whereas, Ajit Singh Matharu, Draftsman,
PW14, on 17-8-2000, prepared the scaled map, Ex. PW13/A, at the instance
of Beant Singh, and proved the same.
CRA-D-156-DB-2004 (O&M) -12-
The Public Prosecutor, for the State, gave up Davander Singh,
ASI, Amrik Singh and Jasbir Singh, Head Constables, Prosecution Witnesses,
as unnecessary. He tendered into evidence Ex. PY, report of the Forensic
Science Laboratory and closed the same.
13. The statements of the accused were recorded under Section 313
Cr.P.C. They were put all the incriminating circumstances, appearing against
them, in prosecution evidence. They pleaded false implication. Rajinder
Kumar, accused, stated that he and his wife Sonia Rani, with their children,
were settled at Chitgaon, District Shimla, where, he was running a shop of
cloth, under the name & style of Bholla Cloth House. He further stated that
on the day of alleged occurrence, he was not present at Sultanpur Lodhi. He
further stated that he came from Shimla, and surrendered before the police.
14. Sonia Rani, accused, in her statement under Section 313 Cr. PC,
stated that she had come to her parents, to see them and on learning about the
occurrence, she reached Sultanpur Lodhi, in the afternoon, on 17-7-2000,
where she was arrested and involved in this case.
15. Varinder Kumar alias Binder alias Ravinder Kumar, in his
statement under Section 313 Cr.PC, stated that at the time of occurrence, he
was not present. He stated that he did not cause any injury to anyone. It was
stated by him that he was taken to the police station, on the evening of 17-7-
2000, alongwith his brothers Gulshan Kumar and Harsh Kumar, his mother
Urmila Rani arid sister-in-law Sonia Rani, who had reached Sultanpur Lodhi,
in, the afternoon, on 17-7-2000. He further stated that all the members of his
family had been falsely involved in this case.
CRA-D-156-DB-2004 (O&M) -13-
16. Gulshan Kumar, accused, in his statement under Section 313
Cr.PC, stated that he was living with his mother, at Sultanpur Lodhi and his
house was under construction. He further stated that he was demolishing the
pillar of the door, to affix a new door. Narinder Kaur and Jaswant Kaur came
there and tried to obstruct him, from demolishing the pillar. A brick-bat
struck both of them and they suffered accidental injuries. It was stated by him
that his brothers, mother and sister-in-law, were not present. It was further
stated by him that the accident was converted into occurrence/incident. He
stated that he was not at fault at all. He also stated that he did not cause any
injury to anyone.
17. Urmila Rani, accused, in her statement, under Section 313
Cr.PC, stated that she was employed in Govt. Girls School, at Sultanpur
Lodhi. She stated that she was not present, at the time of the alleged
occurrence, and was falsely involved in this case.
18. Adarsh Kumar alias Harsh Kumar alias Happy, accused, in his
statement, under Section 313 Cr.PC, stated that he was not present at the time
of the alleged occurrence. He stated that he did not cause any injury to
anyone. He stated that he was taken to the police station, on the evening of
17-7-2000, alongwith his brothers Gulshan Kumar and Varinder Kumar, his
mother Urmila Rani and sister-in-law Sonia Rani, who reached Sultanpur
Lodhi, in the afternoon, on 17-7-2000. He further stated that all the members
of his family, were falsely implicated in this case.
19. The accused, in their defence evidence, examined Baljinder
Singh, Head Constable, DW1. He brought the record, relating to FIR No. 135
CRA-D-156-DB-2004 (O&M) -14-
dated 4-12-1998, P.S. Verowal, registered under Sections 467, 468, 471, 379,
420, 447 and 120-B of the Indian Penal Code, against Beant Singh, and
proved the photo copy of the FIR, Ex. DX. Thereafter, vide separately
recorded statements, the accused closed their defence evidence.
20. Based on the evidence led, while Rajinder Kumar alias Pappu,
Urmila and Sonia Rani were acquitted Varinder Kumar alias Binder alias
Ravinder Kumar, Gulshan Kumar and Adarsh Kumar alias Harsh Kumar alias
Happy came to be convicted and sentenced by the Court of Addl. Sessions
Judge, Kapurthala vide judgment and order of sentence dated 14/19.01.2004
as under:-
Convicts Offence
under
Section
Sentence
RI/SI
Fine RI/SI in
default of
payment of
fine
Varinder
Kumar alias
Binder alias
Ravinder
Kumar
302 IPC Imprisonment
for life
Rs.2000/- RI for 01
month
325/34 IPC RI for 1 ½
years
Rs.500/- RI for 01
month
323/34 IPC RI for 06
months
Rs.200/- RI for one
month
Gulshan
Kumar
302/34 IPC Imprisonment
for life
Rs.2000/- RI for 01
month
325 IPC RI for 02
years
Rs.500/- RI for 01
month
323/34 IPC RI for 06
months
Rs.200/- RI for one
month
Adarsh Kumar
alias Happy
302/34 IPC Imprisonment
for life
Rs.2000/- RI for 01
month
323 IPC RI for 09
months
Rs.200/- RI for 01
month
325/34 IPC RI for 1 ½
years
Rs.500/- RI for 01
month
CRA-D-156-DB-2004 (O&M) -15-
21. It is the aforementioned judgment, which is under challenge, in
the present appeal.
22. The learned Sr. Counsel for the accused/appellants contends that
even as per the prosecution case, the occurrence took place when the accused
party was demolishing the pillar of their own gate and the complainant party
came to the spot to prevent them from doing so. This is the version of the FIR
got registered by the complainant Amandeep Singh and also his version when
he deposed in Court as PW6 though he volunteered to state that the pillar was
being demolished so as to extend the same towards the courtyard of the
complainant side. Similar statements in cross-examination have been made
by PW7-Narinder Kaur and PW8-Beant Singh that the accused party were
demolishing the pillar of their own gate. He, therefore contends as the
occurrence took place when the complainant party came to the spot to
complain about the demolition of the pillar of the accused party, the question
of the applicability of Section 34 IPC would not arise and each accused
would be liable for their individual acts. Even otherwise, it is not a case
where some dangerous weapons were used but only iron rods. Further, the
deceased was inflicted a single blow on the head by Varinder Kumar alias
Binder. He thus contends that the conviction of Varinder Kumar alias Binder
could only be recorded under Section 304 IPC, Gulshan Kumar could be
convicted substantially only under Section 325 IPC for causing a grievous
injury on Narinder Kaur whereas Adarsh Kumar alias Harsh Kumar alias
Happy could be convicted substantially only under Section 323 IPC for
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having caused simple injuries on the person of the complainant and Beant
Singh.
23. The learned counsel for the State, on the other hand, contends
that all the accused persons were collectively demolishing the pillar of the
gate of their house so as to extend their area into that of the complainant
party when the occurrence place took place in which one person died and two
suffered injuries. The medical evidence was totally in consonance with the
ocular account. He, therefore contends that the present appeal is liable to be
dismissed.
24. We have heard the learned counsel for the parties and gone
through the record.
25. Before proceeding further, it would be apposite to examine
various judgments on the issue at hand.
The Hon’ble Supreme Court in “Kedar Prasad and others
versus State of M.P. 1992 AIR Supreme Court 1629”, has held as under:-
2. We have heard learned Counsel for the appellant. His main
prayer is that since the appellants are on bail, we may reduce
the sentence of the appellants to the period already undergone.
There are three appellants in these two appeals. In the dying
declaration of the deceased specific roles have been ased to the
appellants. The deceased Alafat had been attracted by a
commotion in the neighbourhood where a woman was being
beaten. The deceased asked the assailants not to beat that
woman. Then malice was transferred to the deceased and the
accused persons exhorted to each other to divert their attention
to the deceased. The first blow was given by Kedar Prasad
appellant with his stick which struck on the head of the
deceased and another blow was given by Ramlal appellant with
his spear striking at his knee and yet another one on his hand
and thereafter the deceased says that he was given blow by
others. By process of exclusion 12 out of 15 accused originally
CRA-D-156-DB-2004 (O&M) -17-
arraigned have been acquitted by the courts below. Out of the
remaining, two appellants, namely, Kedar Prasad and Ramlal
have been convicted under Section 304, Part I, Indian Penal
Code and sentenced to rigorous imprisonment for five years. All
the three appellants however have been convicted under Section
323 of the Penal Code and sentenced to one year's rigorous
imprisonment.
3. The dying declaration of the deceased, which was relied upon
by the courts below, discloses that the deceased had positively
mentioned Kedar Prasad and Ramlal to be the persons who first
gave him blows one after the other and then by others who do
not figure in these appeals except Ram Bali appellant. It is
evident that Kedar Prasad appellant gave the head injury.
According to Dr. C. L. Nigam, P.W. 12, who performed the
postmortem examination of the deceased, the deceased had died
on account of the severe head injury causing multiple fracture of
the skull besides extradural haemorrhage which by itself was
fatal. Since the fatal injury is attributed to Kedar Prasad,
appellant it appeals to us that his conviction and sentence as
recorded by the High Court should be sustained and we order
accordingly. So far as Ramlal, appellant is concerned the
injuries given by him with a spear on the knee and the arm of
the deceased were simple. For these injuries Ramlal appellant
cannot be convicted under Section 304, Part I, Indian Penal
Code as Section 34 Indian Penal Code has not been applied
after setting aside conviction under Section 147 Indian Penal
Code His conviction has thus to be brought down to one under
Section 324 Indian Penal Code and we order accordingly. There
is nothing which can be said about the conviction of Rambali
appellant who stands' convicted under Section 323 Indian Penal
Code The end result is that we confirm the conviction and
sentence of Kedar Prasad appellant, after the conviction of
Ramlal appellant to one under Section 324 Indian Penal Code
and sentence him to the period already undergone under all
counts and dismiss the appeal of Rambali reducing his sentence
to the period already undergone under all
counts. Thus both
the appeals are disposed of.
Order accordingly.
CRA-D-156-DB-2004 (O&M) -18-
The Hon’ble Supreme Court in “Gurmukh Singh versus State
of Haryana 2009(15) SCC 635”, held as under:-
21. In the instant case, the occurrence had taken place at the
spur of the moment. Only the appellant Gurmukh Singh inflicted
a single lathi blow. The other accused have not indulged in any
overt act. There was no intention or pre-meditation in the mind
of the appellant to inflict such injuries to the deceased as were
likely to cause death in the ordinary course of nature.
22. On consideration of the entire evidence including the
medical evidence, we are clearly of the view that the conviction
of the appellant cannot be sustained under section 302 Indian
Penal Code, but the appropriate section under which the
appellant ought to be convicted is Section 304 Part II Indian
Penal Code.
23. Before we part with the case, we would like to clearly
observe that we are not laying down that in no case of single
blow or injury, the accused cannot be convicted under section
302 Indian Penal Code. In cases of single injury, the facts and
circumstances of each case has to be taken into consideration
before arriving at the conclusion whether the accused should be
appropriately convicted under section 302 Indian Penal Code or
under Section 304 Part II Indian Penal Code.
24. These are some factors which are required to be taken into
consideration before awarding appropriate sentence to the
accused. These factors are only illustrative in character and not
exhaustive. Each case has to be seen from its special
perspective. The relevant factors are as under :
a) Motive or previous enmity;
b) Whether the incident had taken place on the spur of the
moment;
c) The intention/knowledge of the accused while inflicting
the blow or injury;
d) Whether the death ensued instantaneously or the victim
died after several days;
e) The gravity, dimension and nature of injury;
f) The age and general health condition of the accused;
CRA-D-156-DB-2004 (O&M) -19-
g) Whether the injury was caused without pre-meditation
in a sudden fight;
h) The nature and size of weapon used for inflicting the
injury and the force with which the blow was inflicted;
i) The criminal background and adverse history of the
accused;
j) Whether the injury inflicted was not sufficient in the
ordinary course of nature to cause death but the death
was because of shock;
k) Number of other criminal cases pending against the
accused;
l) Incident occurred within the family members or close
relations;
m) The conduct and behaviour of the accused after the
incident. Whether the accused had taken the injured/the
deceased to the hospital immediately to ensure that he/she
gets proper medical treatment ?
These are some of the factors which can be taken into
consideration while granting an appropriate sentence to the
accused. The list of circumstances enumerated above is only
illustrative and not exhaustive. In our considered view, proper
and appropriate sentence to the accused is the bounded
obligation and duty of the court. The endeavour of the court
must be to ensure that the accused receives appropriate
sentence, in other words, sentence should be according to the
gravity of the offence. These are some of the relevant factors
which are required to be kept in view while convicting and
sentencing the accused.
25. When we apply the settled principle of law which has been
enumerated in the aforementioned cases, the conviction of the
appellant under section 302 Indian Penal Code cannot be
sustained. In our considered view, the accused appellant ought
to have been convicted under Section 304 Part II Indian Penal
Code instead of under section 302 Indian Penal Code.
26. We accordingly convert the conviction and sentence of the
appellant Gurmukh Singh from section 302 Indian Penal Code
to one under Section 304 Part II Indian Penal Code and
sentence him to suffer rigorous imprisonment for seven years.
The fine as imposed by the trial court and as upheld by the High
CRA-D-156-DB-2004 (O&M) -20-
Court is maintained. The appellant would be entitled to get
benefit of section 428 of the Code of Criminal Procedure.
27. The appeal is partly allowed in the aforementioned terms
and disposed of.
Appeal partly allowed.
The Hon’ble Supreme Court in “Mariappan versus State
represented by Inspector of Police 2024 AIR Supreme Court 253”, held as
under:-
8. Hence the only question that remains for consideration before
us is whether the act of the accused is culpable homicide
amounting to murder or not. In other words, the question is
whether the acts of the accused would come under Exception 4
to Section 300 IPC or would be an act of culpable homicide
amounting to murder punishable under Section 302.
9. This Court in Rampal Singh v. State of U.P. (2012) 8 SCC
289, while altering the offence under Section 302 to Section 304
Part 1 of IPC, has elaborately discussed the distinction between
culpable homicide amounting to murder and culpable homicide
not amounting to murder. What is held is that classification
would be a matter of fact depending upon the evidence led in the
trial. Broadly speaking, the factors to be considered are
enumerated in paragraph 25 thereof. The same is been
reproduced below:
"25. As we have already discussed, classification of an
offence into either part of Section 304 is primarily a
matter of fact. This would have to be decided with
reference to the nature of the offence, intention of the
offender, weapon used, the place and nature of the
injuries, existence of premeditated mind, the persons
participating in the commission of the crime and to some
extent the motive for commission of the crime. The
evidence led by the parties with reference to all these
circumstances greatly helps the court in coming to a final
CRA-D-156-DB-2004 (O&M) -21-
conclusion as to under which penal provision of the Code
the accused is liable to be punished. This can also be
decided from another point of view i.e. by applying the
"principle of exclusion". This principle could be applied
while taking recourse to a two-stage process of
determination. Firstly, the Court may record a preliminary
finding if the accused had committed an offence
punishable under the substantive provisions of Section
302 of the Code, that is, "culpable homicide amounting to
murder". Then secondly, it may proceed to examine if the
case fell in any of the Exceptions detailed in Section 300
of the Code. This would doubly ensure that the conclusion
arrived at by the court is correct on facts and sustainable
in law. We are stating such a proposition to indicate that
such a determination would better serve the ends of
criminal justice delivery. This is more so because
presumption of innocence and right to fair trial are the
essence of our criminal jurisprudence and are accepted as
rights of the accused."
10. It would also be apt here to refer to the judgement of
Surinder Kumar v. Union Territory, Chandigarh (1989) 2 SCC
217, wherein this Court had laid down the grounds to invoke
Exception 4 to Section 300 IPC:
"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 no 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."
11. In the present case, while looking at the facts and
circumstances of the case, it can be seen that the appellant had
suddenly stabbed the deceased during a heated verbal argument
CRA-D-156-DB-2004 (O&M) -22-
with him and not during a preplanned attack which was carried
out with the sole intention of causing the death of the deceased.
The previous enmity between the appellant and the deceased
had been a contributory factor leading to the verbal altercation
but it was not the reason for the accused to carry out a pre-
planned fatal attack against the deceased. The appellant had
acted "suddenly", in the heat of passion and without a pre-
planned approach to kill the deceased.
12. Right from the beginning i.e. he prosecution story as set up
in the FIR was that initially there was a heated discussion
between the parties and in a fit of anger the physical assault
took place. Even the ocular testimony is also to the same effect.
Although on the same evidence the Trial Court has acquitted
two co-accused and convicted only the appellant. It has also
come in evidence that the appellant had caused only one injury
whereas other accused had caused multiple injuries. However,
the Trial Court acquitted the other two accused.
13. Hence, it can be safely concluded from the evidence led in
the present case that the appellant's overt act of killing the
deceased happened during a fit of anger in the heat of a
passionate verbal quarrel and would fall under Exception 4 to
Section 300 IPC. Moreover, the clear intent needed to prove
culpable homicide amounting to murder has also not been
established by the prosecution.
14. The appeal is partly allowed.
15. The conviction under Section 302 IPC is Converted to
Section 304 Part-I with sentence of 10 years Rigorous
Imprisonment and fine of Rs. 50,000/-, to be paid to the victim's
family.
26. The various High Courts have held as under:-
CRA-D-156-DB-2004 (O&M) -23-
In “Mangalsingh and others versus State of M.P. 1996 CriLJ
1908”, the Gwalior Bench of the Madhya Pradesh High Court, held as
under:-
9. It is not disputed that Pharsa blow was given to Pitaram only
by Mangalsingh and not by other accused persons. As
mentioned above, Dr. R.S. Dixit, P.W. 12, in his testimony and in
his letter, Ex. P-31, has very clearly stated that Injury No. 1 on
the head was not caused by any sharp edged weapon. The
Pharsa, therefore, appears to have been inflicted from the blunt
side which resulted in the fracture of scalp and damage to the
brain. Dr. G.D. Agarwal, P.W. 15, who performed the post
mortem has also in his deposition stated that the injury caused
on the head might have been caused by hard and blunt object. In
para 12 Dr. R.S. Dixit, P.W. 12, has very clearly stated that
injuries Nos. 1, 2 and 3 found on the person of Pitaram were not
sufficient in the ordinary course of nature to cause death. The
version, as stated by the prosecution witnesses, makes out a case
of free fight, as held by us above. We cannot, therefore, infer any
intention on the part of the accused Mangalsingh to commit
murder of Pitaram. The injuries were caused by him in the
course of quarrel which suddenly took place when Roshansingh
had gone to lodge protest to the house of Thakurdas. The
offence, therefore, committed by Mangalsingh would not be one
under Section 302 Indian Penal Code but under Section 304,
Part I, Indian Penal Code. Mangalsingh had also caused
injuries to complainant Bhagwansingh and he has also been
convicted under Section 325 Indian Penal Code. We are
informed that he is in jail since the date of incident and has
almost suffered nine years sentence. We, therefore, set aside his
conviction under Section 302 Indian Penal Code and instead
convict him under Section 304, Part I, Indian Penal Code,
CRA-D-156-DB-2004 (O&M) -24-
Section 325 and Section 148 Indian Penal Code and sentence
him for the period already undergone.
10. So far as the other accused-appellants Nos. 2 to 7 are
concerned, they have all caused injuries by Luhangis and lathis.
The injuries as per the injury reports, Ex. P-26 to Ex. P-29 are
all contusions, abrasions and lacerated wounds. As held above,
there was no formation of unlawful assembly within the meaning
of Section 149 Indian Penal Code and there was no common
intention. They are all, therefore, liable to be convicted only
under Section 325 and Section 148 Indian Penal Code. They are
all on bail. Appellant No. 21, Thakurdas, Appellant No. 6
Jagdish and appellant No. 7 Bhagwatsingh have suffered about
two months sentence and appellant No. 3 Kalyansingh,
appellant No. 4 Parashram and appellant No. 5 Premnarayan
have all suffered three months sentence each before they were
enlarged on bail. In this case, both parties clashed and had
caused injuries to members of other party. In the circumstances
of the case, in our opinion, ends of justice would be met by
sentencing appellants Nos. 2 to 7 to the period of imprisonment
already undergone by them and fine of Rs. 2000/- (Rupees Two
thousand only) each payable as compensation to the injured
within three months. In default of payment of fine they shall
suffer further rigorous imprisonment for six months.
11. Consequently, the appeal only partly succeeds. The
conviction of the appellants under Section 302 read with Section
149 Indian Penal Code is hereby set aside, instead appellant
No. 1 Mangalsingh is convicted under Section 304, Part I,
Section 325 and Section 148 Indian Penal Code and is
sentenced to imprisonment for the period already undergone by
him. The other appellants Nos. 2 to 7 are convicted for the
offences under Sections 325 and 148, Indian Penal Code and
are sentenced to the period of imprisonment already undergone
CRA-D-156-DB-2004 (O&M) -25-
by then and fine of Rs. 2000/- (Rupees Two thousand only) each
payable as compensation to the injured within three months. In
default of payment of fine they shall suffer a further sentence of
rigorous imprisonment for six months. Their bail bonds are
cancelled. All the appellants be set at liberty, if they are not
otherwise required in connection with any other offence.
In “Bhola Ram & Ors. versus State of Rajasthan, (D.B.
Criminal Appeal No.22 of 2006 decided on 09.03.2015)”, the Jaipur Bench,
Rajasthan High Court, held as under:-
41. In the present case, that the occurrence was sudden affair,
without any pre-meditation due to the incident at the well, where
Smt. Guddi was given beating by Sunita and Saroj. It is the
family members of Guddi, who felt hurt and it has rightly been
stated in the written report that immediately thereafter, ladies of
both the houses had an altercation. To us, sudden occurrence
had erupted in the street and both sides came to blows. It is a
case of sudden fight.
42. It was held by the Hon'ble Supreme Court in the case of
Jumman & Ors. v. State of Punjab [AIR 1957 Supreme Court
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 Section 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
CRA-D-156-DB-2004 (O&M) -26-
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 section 300, I.P.C., applies with the
result that the offence is under Section 304 (Part I),
I.P.C."
43. 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 Supreme Court 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 Supreme Court 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."
44. Taking totality of the circumstances, we are of the view that
the accused Bhola Ram and Yadram have been substantively
convicted for the offence under Section 302 for having given
fatal blows to Moti Ram, the deceased. Thus, Bhola Ram and
Yadram are held responsible for causing death of Moti Ram.
Considering that the occurrence was sudden affair, without any
pre-meditation, we are of the view that the offence qua them will
not fall under Section 302 I.P.C., but under Section 304-I I.P.C.
45. Consequently, we convert the offence and set aside the
sentence of life imprisonment awarded under Section 302 I.P.C.
upon Bhola Ram. He is held guilty of offence under Section 304-
CRA-D-156-DB-2004 (O&M) -27-
I I.P.C. and sentenced to undergo ten years R.I. and to pay a fine
of L 10,000/-, in default of payment of fine, to further undergo
one year R.I.
46. Substantive conviction of Bhola Ram for the offence under
Section 307 and 325 is upheld. The sentence awarded to him on
all the counts by the trial court shall run concurrently.
47. We acquit the accused, Ghanshyam of offence under Section
302/149, 307/149 and 325/149 and maintain his substantive
conviction for the offence under Section 324, as he is also
individually liable for the role played by him. Consequently, we
also upheld the sentence of one year awarded upon Ghanshyam
under Section 324 I.P.C.
XXXXX XXXXXX XXXXX
49. Since we have held that Section 149 is not attracted,
Prakash s/o Khayali Ram, Prakash s/o Mohan Lal, Ummedi Lal
and Mannu Ram are acquitted of offence under Section 302/
149, 307/ 149, 325/ 149 and 324/ 149 IPC and their substantive
conviction for offence under Section 323 I.P.C. is upheld. We
also uphold the sentence awarded to them under Section 323
I.P.C.
With the above modification, qua offence and sentence noted,
qua each appellant, the present appeal stands disposed of.
In “Radheshyam and anr. versus State of Rajasthan, (D.B.
Criminal Appeal No.1095 of 2005 decided on 24.03.2015)”, the Jaipur
Bench, Rajasthan High Court, held as under:-
17. The contention of the appellant is that as per prosecution
evidence when goats entered in the field of the complainant
party on a spur of moment without any premeditation, the
occurrence happened. Latoor has inflicted only one injury to the
deceased that too by blunt weapon. There is no repetition of the
CRA-D-156-DB-2004 (O&M) -28-
blows, hence the case of the appellant does not travel beyond
the scope of Section 304 Part-I IPC. The contention of the
counsel for the appellant seems sound and looking to the fact
that incident has happened on a spur of moment when goats
entered into the agricultural field of the complainant party. The
appellant has not taken any undue advantage of the situation, he
has not repeated the blow, consequently, we set aside the
conviction of the appellant Latoor under Section 302 I.P.C. and
convert it into 304 Part-I IPC.
18. It can be noted that prosecution witness has stated that
Radheshyam has also inflicted injury by blunt weapon. PW/12
Ramdayal, PW/7 Shambhoo Dayal and PW/1 Ram Ratan have
stated so but as considered earlier, the incident has occurred on
a spur of moment. There was no pre-mediation of mind and
when incident has occurred spontaneously, Section 34 I.P.C.
would not come into play and common intention could not be
attributed to Radheshyam but as specific injury has been
attributed to him, he would be only liable for his individual act,
hence his conviction under Sections 302 and 307 I.P.C. is set
aside but conviction and sentence under Section 323 I.P.C. is
maintained.
In the light of the above, the conviction of the appellant Latoor
is converted from 302 I.P.C. to 304 Part-I I.P.C. As per arrest
memo (Ex.P/18), Latoor was arrested on 29.10.2003. As stated
by counsel, he is in custody from last 11 years and about five
month, hence his substantive sentence is reduced to the period
already undergone while maintaining the sentence of fine and
default clause.
While maintaining the conviction and sentence of appellant
Radheshyam for offence under Section 323 I.P.C., he is
acquitted of offence under Section 302/34 and 307/34 IPC.
CRA-D-156-DB-2004 (O&M) -29-
In “Banwari and others versus State of U.P. (Criminal Appeal
No.105 of 2012 decided on 20.11.2015) and Rakesh versus State of U.P.
(Criminal Appeal No.106 of 2012 decided on 20.11.2015)”, the Allahabad
High Court held as under:-
16. Keeping in view the aforementioned legal position and the
facts of the instant case which reflects that the incident has
taken place on the spur of the moment and free fight took place
between both the sides in which both sides have received
injuries. Law is settled on the point that in case of free fight
each and every accused shall be responsible for his own act and
in the instant case both the accused persons are alleged to have
given lathi blows to the deceased and the deceased has received
two lathi blows on his head which proved fatal. So both the
appellants have given one blow each on the deceased and no
effort was made to repeat the blow on any vital part of the body.
No undue advantage of the above situation was taken by any of
the appellants and the offence was not committed with prior
intention or premeditation. Thus this offence would fall under
Section 304 part II IPC.
17. In these circumstances, the offence would fall only under
Section 304 part II IPC. Accordingly, we are of the considered
view that this appeal deserves to be partly allowed and is hereby
partly allowed. Conviction of both the appellants deserves to be
modified from Section 302 IPC to Section 304 part II IPC and
their sentence deserve to be reduced from imprisonment for life
to the rigorous imprisonment for a period of five years and also
with fine of Rs. 10,000/- each with default stipulation of two
months additional imprisonment. The conviction and sentence
inflicted by the learned trial court for the offence under Section
325 IPC is also hereby confirmed. The appellants Banwari and
CRA-D-156-DB-2004 (O&M) -30-
Rakesh are in custody. They shall serve out the sentence as
modified by this Court. The period already undergone by the
appellants in custody in this case, shall be set off in their
substantive sentence in accordance with the provision of Section
428 Cr.P.C.
In “Jagram and others versus State of Rajasthan (in DB
Criminal Appeal No.1255 of 2011 decided on 14.01.2016)”, the Jaipur
Bench, Rajasthan High Court held as under:
23. Thus, to us, the trial court has rightly given a finding of free
fight. In the facts and circumstances, due to non-impleadment of
right of self defence, we cannot say with a definite opinion that
from the case of prosecution itself right of self defence of
property of accused or person is made out.
24. Supreme Court in Lakshmi Singh & Ors. v. State of Bihar
[(1976) 4 SCC 394] has held that if the injuries on the person of
accused are not explained, it is to be assumed that prosecution
has suppressed genesis and origin of the occurrence and thus,
acquittal of the accused should be recorded. The relevant paras
of the aforesaid judgment are as under:-
"This Court clearly pointed out that where the
prosecution fails to explain the injuries on the
accused, two results
follow: (1) that the evidence of the prosecution
witnesses is untrue: and (2) that the injuries
probabilise the plea taken by the appellants. The
High Court in the present case has not correctly
applied the principles laid down by this Court in the
decision referred to above. In some of the recent
cases, the same principle was laid down. In Puran
Singh v. The State of Punjab Criminal Appeal No.
266 of 1971 decided on April 25, 1975 : which was
also a murder case, this Court, while following an
earlier case, observed as follows:
CRA-D-156-DB-2004 (O&M) -31-
In State of Gujarat v. Bai Fatima Criminal Appeal
No.67 of 1971 decided on March 19, 1975 : ) one of
us (Untwalia, J., speaking for the Court, observed as
follows:
In a situation like this when the prosecution fails to
explain the in juries on the person of an accused,
depending on the facts of each case, any of the three
results may follow:
(1) That the accused had inflicted the injuries on the
members of the prosecution party in exercise of the
right of self defence.
(2) It makes the prosecution version of the
occurrence doubtful and the charge against the
accused cannot be held to have been proved beyond
reasonable doubt.
(3) It does not affect the prosecution case at all.
The facts of the present case clearly fall within the
four corners of either of the first two principles laid
down by this judgment. In the instant case, either
the accused were fully justified in causing the death
of the deceased and were protected by the right of
private defence or that if the prosecution does not
explain the injuries on the person of the deceased
the entire prosecution case is doubtful and the
genesis of the occurrence is shrouded in deep
mystery, which is sufficient to demolish the entire
prosecution case.
It seems to us that in a murder case, the non-
explanation of the injuries sustained by the accused
at about the time of the occurrence or in the course
of altercation is a very important circumstance from
which the Court can draw the following inferences:
(1) That the prosecution has suppressed the genesis
and the origin of the occurrence and has thus not
presented the true version:
(2) that the witnesses who have denied the presence
of the injuries on the person of the accused are lying
on a most material point and therefore their
evidence is unreliable;
(3) that in case there is a defence version which
explains the injuries on the person of the accused it
is rendered probable so as to throw doubt on the
prosecution case."
CRA-D-156-DB-2004 (O&M) -32-
25. Since both the parties, have withheld origin and genesis of
the occurrence, it cannot be determined as to which party was
aggressor. Thus, trial court has rightly held that it is a case of
free fight. However, trial court wrongly came to the conclusion
that Jagram and Kailash intended to cause death of Kanchan
Lal, but Sajana Devi and Malli Devi have not shared the
common intention with them. To us, this finding is not justified.
Once the court come to the conclusion that it is a case of free
fight, Section 34 IPC cannot be applied.
26. It was held by the Hon'ble Supreme Court in the case of
Jumman & Ors. v. State of Punjab [AIR 1957 Supreme Court
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 Section 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 Section 300, I.P.C., applies with the
result that the offence is under Section 304 (Part I),
I.P.C."
27. 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 Supreme Court 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
CRA-D-156-DB-2004 (O&M) -33-
wounds on the vital parts. In Dharman v. State of
Punjab, AIR 1957 Supreme Court 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."
28. Thus, taking totality of circumstances, we are of the view
that conviction of the accused-appellants Jagram and Kailash
cannot be sustained for offences under Sections 302 and 302/34
IPC respectively. Both the accused have caused one injury each
on the head of deceased Kanchan Lal, thus by applying ratio of
law laid in Jumman's case (supra) and Dharman (supra),
Jagram and Kailash are liable to be convicted for offence under
Section 304 Pt.I IPC.
29. Consequently, we convert the offence qua the appellants and
set aside the sentence of life imprisonment awarded under
Section 302 IPC upon Jagram and Kailash. They are held guilty
of offence under Section 304 Pt.I IPC and sentenced to undergo
ten years rigorous imprisonment. They are further held liable to
pay a fine of Rs. 10,000/- and in default thereof to undergo one
year rigorous imprisonment.
27. A perusal of the aforementioned judgments would show that
where injuries were caused without pre-meditation in a sudden fight, which
had taken place on the spur of the moment and the deceased had received a
single fatal injury, then, ordinarily, Section 34/149 IPC would have no
application and each accused would be convicted for the individual role
played by him, in as much as, the accused who has given the fatal injury on
the person of the deceased would be liable for having committed an offence
CRA-D-156-DB-2004 (O&M) -34-
under Section 304 IPC, whereas the other accused would be liable for the
individual injuries caused by them to the deceased and other injured.
28. Coming back to the facts of the instant case, as per the
prosecution when the accused side was dismantling the pillar of their own
gate, the complainant party came to remonstrate with them. At that time,
Rajinder Kumar @ Pappu (acquitted accused) raised a lalkara that the
complainant party be caught and taught a lesson for preventing them from
demolishing the pillar. Rajinder Kumar alias Pappu (acquitted accused),
Urmila (acquitted accused) wife of Jagdish Lal and Sonia Rani (acquitted
accused) wife of Rajinder Kumar @ Pappu attacked and quarrelled with the
mother and aunt of the complainant. Then Varinder Kumar @ Binder @
Ravinder Kumar gave a rod blow to the complainant’s mother Jaswant Kaur
(deceased) which hit her on her head. Gulshan Kumar gave a rod blow to
Narinder Kaur which hit her on her arm which got fractured. Then Adarsh
Kumar @ Harsh Kumar @ Happy gave a rod blows to the complainant on his
left arm and left hand and two blows to his father Beant Singh on his left
wrist and right shoulder. Apparently, it was a sudden fight without pre-
meditation in the heat of the moment and only iron rods were used. It cannot
be said that the accused party acted in a cruel manner or took undue
advantage. In fact, it was the complainant party which had gone towards the
accused to protest against them demolishing their pillar of the gate.
Therefore, exception 4 to Section 300 IPC would apply. In this situation, it
cannot be said that the accused had a common intention as envisaged under
CRA-D-156-DB-2004 (O&M) -35-
Section 34 IPC to commit the offence in question. Hence each accused would
be liable for his individual role/act.
29. In view of the aforementioned discussion, the conviction of the
appellants is modified as under:-
i. The conviction of Varinder Kumar @ Binder @ Ravinder
Kumar is modified from 302 IPC, 325/34 IPC and 323/34 IPC
to 304 Part I IPC only and he is sentenced to undergo rigorous
imprisonment for a period of 07 years and to pay a fine of
Rs.2000/- in default of which he would undergo rigorous
imprisonment for a period of 01 month.
ii. The conviction of Gulshan Kumar for the offence under
Section 302/34 IPC and 323/34 IPC is set aside and his
conviction and sentence for the offence under Section 325
IPC for causing a grievous injury to Narinder Kaur is
maintained.
iii. The conviction of Adarsh Kumar @ Harsh Kumar @
Happy for the offence under Section 302/34 IPC and 325/34
IPC is set aside and his conviction and sentence for the
offence under Section 323 IPC for causing simple injuries to
Amandeep Singh is maintained.
iv. The conviction of Adarsh Kumar @ Harsh Kumar @ Happy
for the offence under Section 302/34 IPC and 325/34 IPC is
set aside and his conviction and sentence for the offence under
CRA-D-156-DB-2004 (O&M) -36-
Section 323 IPC for causing simple injuries to Beant Singh is
maintained.
The sentences imposed on Adarsh Kumar @ Harsh Kumar @ Happy
shall run concurrently.
(JASJIT SINGH BEDI) (GURVINDER SINGH GILL)
JUDGE JUDGE
13.05.2025
JITESH Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
Legal Notes
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