Ram Parshad vs State
2011 Latest Caselaw 4885 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                        Date of Hearing: 29th August, 2011
                                                    Date of Decision: 30th September, 2011
+         Crl. A. No.146/1998

          RAM PARSHAD                                       ..... Appellant
                                   Through:   Mr. N.Hariharan Amicus Curiae with
                                              Mr. Vaibhav Sharma, Advocate,
                                              Mr. Varun Deshwal, Advocate.
                          Versus

          STATE                                           ..... Respondent
                                   Through:   Mr. M.N. Dudeja, APP for the State.
          CORAM:
          HON'BLE MR. JUSTICE S. RAVINDRA BHAT
          HON'BLE MR. JUSTICE G.P.MITTAL

          1. Whether reporters of local papers may be
             allowed to see the Order?                       Yes
          2. To be referred to the Reporter or not?          Yes
          3. Whether the Order should be reported
             in the Digest?                                  Yes

                                       JUDGMENT

G. P. MITTAL, J.

1. This Appeal impugns the judgment dated 25.10.1997 and order on sentence dated 27.10.1997 (in Sessions Case No.50/1997) whereby the Appellant was convicted for offences punishable under Sections 302/324Indian Penal Code (IPC). He was sentenced to undergo life imprisonment and to pay fine of ` 500/- for the offence punishable under Section 302 IPC or in default of payment of fine to undergo SI for one week. He was further sentenced to undergo RI for two years for the offence punishable under Section 324 IPC. The sentences were to run concurrently.

2. In nutshell, the prosecution case is that on 06.09.1991, at about 7:00 AM Raju (PW-1) was returning from a public lavatory. He allegedly splashed water in front of Ram Parshad's shop. The latter took offence to it. Ram Parshad abused on Raju and chased him saying why he had thrown water there. Raju got frightened

and rushed into his house. He narrated Ram Parshad's behaviour to his parents. Raju's mother Shanti Devi (the deceased) suggested to his father Ramji Lal to call someone from the neighbourhood. It is alleged that while Ramji Lal had gone to call the neighbours, Ram Parshad reached Raju's house armed with a Churri. The Appellant gave a lalkaara that he would not spare anyone on that day. The Appellant gave a Churri blow to Raju's mother's left armpit. He (Raju) raised an alarm and intervened to save his mother. At this, Ram Parshad gave a knife blow in Raju's abdomen. In the meanwhile, his father Ramji Lal also reached home and tried to rescue Raju. The Appellant gave a Churri blow on the left side of his father's stomach. It is alleged that Ram Parshad's mother Batto Devi also reached the spot armed with a danda, and gave a blow with it on Raju's mother's head. Ramji Lal (Ram Parshad's father) gave a lathi blow on Raju's father's right elbow. It is alleged that in the meanwhile, Narayan and Gopal reached the spot and rescued them.

3. Shanti Devi (the deceased) and her husband Ramji Lal were removed to AIIMS.

Raju was first taken to Mool Chand Hospital and then was removed to AIIMS. On receipt of DD No.23-A Ex.PW-8/B6, SI Prem Singh reached the spot. Having come to know that the injured were taken to AIIMS, he went there. He recorded Raju's statement Ex.PW-1/A and made his endorsement Ex.PW-25/D for registration of an FIR for the offence punishable under Section 307/34 IPC. After giving her initial treatment, Shanti was shifted to Safdarjung Hospital. She succumbed to the stab injuries and was declared dead at 11:30 AM and the case was converted to the offence punishable under Sections 302/307/34 IPC. Dr. G.K. Chaubey conducted autopsy on Shanti Devi's dead body. He found:-

"a stab wound over left chest size 3 x 1 cm going downwards and medially piercing through lower lobe of left lung, pericardium and left ventricle of heart. Depth of wound was 9 cm. Because of injuries there was collecting blood inside chest approx. 2 to 3 liters and also blood collected surrounding heart underneath pericardium. Margins were clean cut. Both angles acute. Injury was ante mortem and fresh before death." He opined cause of death "due to hemorrhagic shock and cardiac tamponade collection of blood over heart so that heart does not pump. The

injury on the chest was found to be sufficient to cause death in the ordinary course of nature."

4. In order to establish its case, the prosecution examined 27 witnesses.

5. PW-1 Raju, PW-2 Ramji Lal, PW-5 Chet Ram, and PW-6 Kalyan Singh are the material witnesses.

6. In his examination under Section 313 Cr.P.C., the Appellant denied having caused to Shanti, Ramji Lal or Raju. He stated that on 12.08.1990 Raju caused injuries to him. A compromise was arrived at in the said case. After the compromise, a false complaint was filed against him by Raju. He (the Appellant) filed an application to the SHO. Raju threatened him for lodging a report with the SHO and implicated him in the case falsely.

7. The Trial Court did not attach much importance to the discrepancies about apprehension of the culprit at the spot, discrepancy regarding duration of time between the death and the postmortem examination; absence of danda injury on Shanti Devi's head and believing the prosecution version vis-à-vis the Appellant, he was convicted under Section 302/324 IPC.

8. Batto Devi (Ram Parshad's mother) was acquitted of the charges on the ground that the role assigned to her i.e. giving danda blow on Shanti Devi's head was not established as no head injury was found on Shanti Devi's body either in the MLC prepared in AIIMS or in the postmortem report Ex.PW-18/A, conducted in Safdarjung Hospital. The Trial Court found that there was possibility of embellishment and roping in Batto Devi falsely. Since the trial against Ramji Lal had abated (as he died during the trial) and the Batto Devi's acquittal is not the subject matter of this Appeal, we need not go into the question about the role attributed to Ramji Lal (now deceased) and Batto Devi (already acquitted).

9. In cross-examination PW-18 G.K.Chaubey ruled out the possibility of the injury on the Shanti Devi's person to be self sustained or self inflicted. There is no reason to doubt PW-18's testimony and his report Ex.PW-18/A. It is, therefore, established that Shanti Devi's death was homicidal.

10. We have heard Mr. N. Hariharan learned counsel for the Appellant, Mr. M.N.Dudeja, learned APP for the State and have considered the record.

11. It is urged by the learned counsel for the Appellant that he was implicated in the case falsely, on account of his previous animosity with PW-1 Raju. It is emphasized that as per prosecution version the rukka was sent to the Police Station for registration of an FIR at 10:20 AM whereas according to PW-10 Constable Dalbir Singh, the IO reached the hospital after 10:55 AM. It is urged that existence of the FIR in these circumstances is doubtful and thus, the possibility of the Appellant being falsely implicated in the case on account of previously enmity cannot be ruled out. It is contended that according to the prosecution, the injury was caused by the Appellant to Shanti Devi when she was standing on the steps and if this is to be believed, the movement of the knife would have been upward, whereas in this case, the movement of the knife is from the upper part to lower part of the body. The learned counsel contended that infact the fight occurred elsewhere with some others who were apprehended at the spot and the Appellant was implicated in the case falsely later (according to the prosecution version recorded in DD No.23-A Ex.PW-9/A, the culprit was apprehended at the spot). No explanation has been given by the prosecution that if the culprit was so apprehended then why he was allowed to go by the police. It is urged that as per the postmortem examination the time since death was 16 hours. The postmortem examination was conducted at about 3:00 PM which belies the prosecution version; the MLC, indicated that Shanti Devi died at 11:30 AM. It is contended that everything was manipulated to help the complainant to falsely implicate the Appellant.

12. On the other hand, learned APP argued that two injured witnesses PWs 1 and 2 who were the son and husband of Shanti Devi respectively would not have falsely implicated the Appellant and allow the real culprit to go scot free. With regard to the discrepancy in the duration since death and the postmortem examination, it is urged that there was some clerical mistake on the part of the autopsy surgeon (PW-18). In view of the discharge summary Ex.Pw-18/B-10 there cannot be any manner of doubt that Shanti Devi was declared dead at 11:30 AM. It is contended

that the culprit had not been apprehended by the police and the DD No. No.23-A Ex.PW-9/A would only show that members to the public had caught the attackers. It was explained by PW-20 ASI Rajpal that the assailants who caused the injuries ran away into the crowd.

13. It is evident from the MLC Ex.PW-21/B that Raju was brought to AIIMS by Chet Ram and admitted by Constable Dalbir Singh (PW-10). Information was sent by Constable Dalbir Singh (PW-10) by DD No.17-B recorded at 10:55 AM to that effect. As a Constable posted in AIIMS casualty, it was the duty of the Constable Dalbir Singh to pass information regarding admission of various injured in medico-legal cases. It is true that Constable Dalbir Singh admitted in his cross- examination that the IO reached the hospital after 10:55 AM. A duty Constable attends to various injured/sick persons who are admitted in the casualty in medico legal cases. He is not concerned with the recording of statements of the injured by the IOs but information regarding his admission would have been passed on by him only at 10:55 AM. The duty Constable was not aware of the facts and it was on the presumption that he had given the information to the IO only at 10:55 AM. The IO, in the natural course would reach the hospital thereafter and that is the reason why PW-10 stated in cross-examination that the IO reached the hospital only after 10:55 AM.

14. SI Prem Singh, the initial IO was quite clear that he reached the house No.115, H Block, Tigri along with Constable Dasrath on receipt of DD No.23-A. This DD entry was received by him at 8:05 AM. SI Prem Singh deposed to being informed that the injured were taken to the hospital. He and Constable Dasrath proceeded to the hospital where he saw that Shanti, Raju and Ramji Lal were admitted. He testified that Shanti was unfit to make a statement. He recorded Raju's statement Ex.PW-1/A. Rukka Ex.PW-25/D revealed that it was dispatched to the Police Station at 10:20 AM and the FIR was recorded at the Police Station by DD No.9- A on the same day at 10:50 AM. It is important to note that the injured Ramji Lal and Shanti were removed to AIIMS by PW-4 Bhagwati whereas Raju was taken to the hospital by PW-5 Chet Ram. Raju and Chet Ram were not aware that Shanti Devi and Ramji Lal had been taken to AIIMS, therefore, Chet Ram first

took Raju to Mool Chand hospital and from there he was removed to AIIMS. PW-5's testimony on this aspect was not challenged in cross-examination. Thus, there is no doubt that Raju was first taken to Mool Chand hospital. When SI Prem Singh reached the hospital on finding that no eye witness was available at the spot, he recorded Raju's statement at about 10:00 AM. Thus, it cannot be said that the existence of the FIR is doubtful. It cannot be said, merely on the basis of PW10 Constable Dalbir Singh's testimony that the IO reached the spot after 10:55 AM.

15. Similarly, the contention raised on Appellant's behalf that the real culprit was allowed to escape and he was falsely implicated is without any substance. DD No.23-A (Ex.PW-18/B-6) discloses that after the stabbing incident the assailant was captured. PW-20 ASI Rajpal of PCR infact reached the spot on the basis of information regarding stabbing given to the Police Control Room. In cross- examination by the learned APP, the witness clarified that the offenders apprehended by the public managed to escape into the crowd. Thus, the culprit's escape was not from the police custody but from the hands of the public. Just because the culprit escaped into the crowd, it cannot be inferred that the Appellant was falsely implicated in the case. The stabbing incident is established by PWs 1 and 2's statement which is corroborated by PWs 4 and 5's testimonies and the medical evidence.

16. Raju (PW-1) has given the cause of quarrel. We find no reason to disbelieve PW-

1's and PW-2's testimonies. We do agree that the testimonies of PWs 1 and 2, who were injured in the incident, cannot be doubted. PW-1 being the son and PW- 2 being the husband of deceased Shanti Devi would not allow the real culprit to escape punishment.

17. The learned counsel for the Appellant took us through PWs 1 and 2's testimonies and urged that they have contradicted each other. It is contended that what can be inferred from PW-1's testimony is that his father PW-2 did not see the attack on the deceased and PW-1, whereas, PW-2 claims to have witnessed it. PW-1 deposed that the Appellant had made a grievance about PW-1's splashing water

outside his shop. The Appellant abused and chased him. PW-1 rushed towards his house and on reaching home, he informed his parents about the Appellant's behaviour. He deposed that his mother (Shanti Devi) suggested to his father to call someone from the neighbourhood. His father went to call Gopal and Narayan. In the meanwhile, the Appellant came outside their house armed with a Churri and threatened to kill them to put an end to the entire dispute. His mother was standing at the door of the shop. The Appellant inflicted a Churri blow on her left armpit. When he tried to intervene and save his mother, the Appellant gave a Churri blow on the left side of his abdomen. His mother ran out crying. At that point of time his father reached the spot. The Appellant gave a Churri blow on the left side of his father's abdomen too.

18. About the actual incident PW-2 Ramji Lal testified that his wife Shanti Devi asked him to call someone from the neighbourhood. He went to call his neighbour Gopal. On his return, he saw the Appellant giving a Churri blow to his wife's left armpit. When he reached her, he found her in a pool of blood. His son Raju was also bleeding from his abdomen. When he tried to help his wife, the Appellant gave a Churri blow to his armpit too.

19. In our opinion, the testimonies of PWs 1 and 2 cannot be said to be at variance to each other. Rather they are consistent and natural. While injuries were being inflicted by the Appellant on Shanti and PW-1 Raju, he (Raju) might not have seen his father approaching him. Obviously, his attention was towards the assailants. There were just three injuries one each inflicted on the deceased and PWs 1 and 2. Thus, the whole incident might have taken just a few minutes. Therefore, PW-1's not mentioning that his father was present when his mother Shanti was given a Churri blow by the Appellant or when he (PW-1) was inflicted a Churri blow in his abdomen, would show that his testimony was natural and has given the correct sequence of events. We do not agree that PWs 1 and 2's testimonies are contradictory on the incident.

20. Learned counsel for the Appellant tried to demonstrate that if someone stands at the doorstep and the assailant approached him/her and inflicted a knife blow while

he (the assailant) is two steps below, the movement of the knife would be from upwards. In this case, it is argued the movement of the knife was downward from above which was not possible and therefore, whole incident became doubtful. We do not agree with the contention. PW-18 Dr. G.K. Chaubey, who conducted the autopsy on Shanti's dead body, was not cross-examined on this aspect. Of course, it is a matter of evidence that at the time of incident Shanti was standing at the door and the street level was 2/3 steps down. Yet, we do not know as to how the actual blow was inflicted. The doctor has also not given any opinion how the injury was caused. In the circumstances, we are not inclined to attach importance to the arguments advanced on the Appellant's behalf.

21. There is some discrepancy regarding the duration of time since death and the postmortem examination. The postmortem examination was conducted by PW-18 Dr. G.K. Chaubey on 07.02.1991 at 3:00 PM and he gave the time since death to be 16 hours. A perusal of the death summary Ex.PW-18/B-10 reveals that the patient Shanti was shifted to Safdarjung Hospital on 06.02.1991 at 10:55 AM. At about 11:00 AM, she started gasping. She was given some treatment and cardiac massage. Despite all measures, she could not be revived and was declared dead at 11:30 AM. In view of the death summary, there cannot be any doubt that Shanti expired at 11:30 AM on 06.02.1991. In the face of this evidence, which cannot be challenged, the opinion of the doctor that the time since death was 16 hours at the time of postmortem examination at 3:00 PM on the next day cannot be accepted. There could not have been any manipulation either in the death summary on the injuries suffered by Shanti. The Appellant, therefore, cannot make capital out of this discrepancy in the postmortem report Ex.PW-18/B-9.

22. In Bikau Pandey & Ors. v. State of Bihar, AIR 2004 SC 997, it was held that merely because the witnesses happened to the deceased's relatives, was not a ground to reject their testimonies. The fact that both PWs 1 and 2 were injured in the incident establishes their presence at the spot at the time. We are conscious of the fact that PW-21 Dr. Alpna Sinha admitted in her cross-examination that the possibility of injury on PWs 1 and 2 to be self inflicted could not be ruled out, that would not mean that the injury was self inflicted. Smt. Shanti received a very

serious injury which ultimately proved fatal. She and PW-2 were removed to the hospital together. It cannot be believed that while Shanti was inflicted a serious injury 9 cm deep downward and medially piercing through lower lobe of left lung, pericardium and left ventricle of heart, PWs 1 and 2 would be busy in inflicting injuries on themselves. The nature of injuries on PWs 1 and 2 was not proved for want of doctor's opinion. These were, therefore, taken to be simple by the Trial Court. Thus, it is established that the Appellant had inflicted fatal injury on Shanti and simple injuries on PWs 1 and 2.

23. The Appellant was convicted under Section 302 IPC as the injury on Shanti was found to be sufficient to cause death in the ordinary course of nature. It is contended on Appellant's behalf that what is proved on record is that there was a quarrel between the Appellant and PW-1 in regard to splashing water in front of the Appellant's shop by PW-1. While PW-1 rushed to his house, he was chased and abused by the Appellant. Although, PW-1 deposed that the Appellant had strained relations with them, yet the cause of it has not been revealed. What can be inferred from PW-1's deposition is that there was some ill will between the Appellant and PW-1. PW-1's splashing water in front of the Appellant's shop (even if unintentional) was the cause for the Appellant's rage. It is urged by the learned counsel for the Appellant that he inflicted just a single blow on Shanti. Unfortunately, the blow landed on the abdomen causing her death. The Appellant did not have any intention to cause Shanti's death and thus, he ought not to have been convicted under Section 302 IPC. Rather, the Appellant by his act could be attributed a knowledge that his act was likely to cause Shanti's death and thus, he could have been convicted under Section 304 Part II IPC. It is urged that in any event the act of the Appellant is covered under exception IV to Section 300 IPC as the injury was inflicted on Shanti without pre-meditation in a sudden fight in the heat of passion, upon a sudden quarrel. The fact that only a single blow was given would bear testimony to the fact that the Appellant did not take any undue advantage nor acted in a cruel or unusual manner.

24. It is well settled that the plea whenever death is on account of a single blow, the offence would be under Section 304 and not under Section 302 IPC is not tenable

(Pulicherla Nagaraju @ Nagaraja Reddy v. State of AP, 2006 Crl.L.J. 3899; State of Rajasthan v. Dhool Singh, 2004 Crl.L.J. 931).

25. In the case of Bangaru Venkata Rao v. State of A.P., 2008 Crl.L.J. 4353 it was held that:-

"there is no rule of universal application that whenever one blow is given section 300 IPC is ruled out. It would depend upon the facts of each case, the weapon used, sized of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given, are some of the factors which can be considered by the Court to form an opinion whether the case would fall under Section 304 or 302 IPC."

26. In this case, the weapon used is a Churri with a 9½ inches blade. The injury was caused on a vital part of the body i.e. abdomen. It is nowhere shown that the knife accidentally or unintentionally fell on that part of the body. The depth of the injury was 9 cms. The depth of the injury (i.e. 9 cms) indicates the force used by the Appellant in inflicting injury. Thus as per Jagtar Singh v. State of Punjab, 1983 Crl.L.J. 852, the Appellant's act would amount to murder unless his case falls under exception IV.

27. As we have already discussed above the circumstances leading to the murderous attack on Shanti, the starting point was splashing of water in front of the Appellant's shop by PW-1 Raju. This led to the Appellant hurling abuses and chasing him. The Appellant almost immediately reached deceased's doorsteps. Thus, there could not be any pre-planning or pre-meditation. Perhaps, the Appellant wanted to inflict injury only on Raju's person but it seems that Shanti came in the way as she wanted to save her son from the Appellant's wrath which led to the Appellant's inflicting injury on Shanti's person.

28. In Deepak Sharma v. State of Delhi, Criminal Appeal No.45/1998, decided by us on 9th March, 2011, the deceased's son i.e. PW-4 teased the Appellant calling him „Kala Kauva‟ (black crow). The Appellant had a grievance with PW-4's mother i.e. the deceased would always come to her sons (i.e. PWs 2 and 4) rescue and would support them. This Court held that the Appellant would be entitled to the benefit of exception IV to Section 300 IPC and would be guilty under Section 304

Part I IPC instead of Section 302 IPC. We would like to extract Para 16 of the report hereunder:-

"16. It is apparent from the above, that the Supreme Court has held that where the incident leading to the fatal attack, is preceded by a trivial quarrel, and the assault is limited to a single, though fatal blow, without any history of malice, or previous ill well between the deceased and the assailant, even a short while, i.e a few minutes elapse between the quarrel, the accused leaving the scene, and returning armed, the attack may not amount to murder, but would be covered by Section 304. In the present case too, the quarrel between the appellant and the deceased‟s sons, was due to a trivial reason. Although PW-2 and PW-4 denied having teased or laughed at the appellant, refusing his suggestion, the independent testimony of PW-5 somewhat supports his (the appellant‟s) version about some irritant or provocation, particularly the allusion to the two boys (PW-2 and PW-4) always quarrelling with him. The appellant is consistently shown to have used the word "Himayat" to PW-4 and the deceased. There is no reason to disbelieve PW-5. In fact, this version is closer to that of the line of questioning, on behalf of the appellant, that the boys had teased him. He, therefore, went home, and returned within about 3-4 minutes. He tried to assault Ajaypal; the deceased tried to prevent him; he attacked her. PW-4 thereafter tried to intervene; he too was attacked. All these facts do not suggest pre-meditation, or a previous history of ill will between Deepak and the deceased‟s family. He launched an attack on the deceased, when he thought that she would prevent him from assaulting Ajaypal. Both she and PW-4 were given single blows, when they tried to prevent his attack. These facts, viewed cumulatively do call for the applicability of Exception 4 to Section 300, IPC, as to amount to culpable homicide, covered by the first part of Section 304."

29. To invoke Exception IV to Section 300 IPC, the accused has to show that "(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."

30. The cause of quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is also 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.

31. In Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217; it was observed that, "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."

32. In Prakash Chand v. State of H.P., 2004 (11) SCC 381, there was a quarrel between the deceased and the accused when the accused's dogs entered the deceased's kitchen. Consequent to the verbal altercation that ensued, the accused went to his room, took out his gun and fired a shot at the deceased, as a result of which pellets pierced the chest of the deceased, resulting in his death. It was held by the Supreme Court that proper conviction of the accused would be under Section 304 Part I of IPC and not under Section 302 thereof.

33. In Shaikh Azim v. State of Maharashtra, 2008 (11) SCC 695, the deceased and his son were present at their house along with other family members. They noticed some filth thrown in the backyard of their house from the side of the house of the accused and expressed their displeasure in this regard. The family members of the accused also abused them. One of the accused held a stick, the other held an iron rod and the third accused was armed with a stick went out of their house and gave blows on the head of the deceased. When his son rushed to his rescue, the accused also gave injuries to him with iron rod and sticks. The deceased succumbed to the injuries caused to him. It was held that the appropriate conviction of the appellant/accused would be under Section 304 Part I of the IPC.

34. In the case of Mahesh v. State of M.P., 1996 Crl.L.J. 4142, the Appellant arrived along with the cattle at the field. There was no premeditation for the assault. In para 4, the Supreme Court held as under:-

4........At the spot, there was an altercation between the parties and in the sudden fight, after the deceased objected to the grazing of the cattle, when possibly hot words or even abuses were

exchanged between the parties, the appellant gave a single blow with the pharsa on the head of the deceased. The statement of the appellant and the suggestions given on his behalf to the prosecution witnesses that there was an attempt to assault the deceased with a Parena, which was with the deceased, does not appear to be improbable. Thus, placed as the appellant and the deceased were at the time of the occurrence, it appears to us that the appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heals. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault PW-2 or PW-6 who were also present also with the deceased and who had also requested the appellant not to allow his cattle to graze in the field of PW-1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception-4 to Section 300 IPC is clearly attracted to the case of the appellant and the offence of which the appellant can be said to be guilty would squarely fall under Section 304 (Part-I) IPC. The trial court, under the circumstances, was justified in convicting him for the said offence and the High Court, in our opinion, fell in error in interfering with it and that too without dispelling any of the reasons given by the trial court. The judgment of the High Court convicting the appellant for an offence under Section 302 IPC cannot be sustained and we accordingly set it aside and instead convict the appellant for the offence under Section 304 (Part-I) IPC".

35. In A. Maharaja v. State of Tamil Nadu, 2008 (17) SCC 173, the Supreme Court highlighted that the origin of the dispute was not material but the subsequent conduct of the parties puts them in respect of the guilt upon equal footing. There is mutual provocation and aggression and it is difficult to apportion the share of blame on each of the party. We would like to extract part of Para 10 of the report in A. Maharaja (supra) hereunder:-

"10. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution 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 men‟s sober reason and urges them to do 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 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 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................."

36. In this case, the incident took place in the morning hours. The cause of quarrel was trivial as PW-1 splashed some water in front of the Appellant's shop. The Appellant might have picked up the Churri lying in his shop. Obviously, he acted in the heat of passion. The fact that only a single blow was given indicates that the Appellant did not act in a cruel or unusual manner. In the circumstances, the Appellant would be entitled to benefit of exception IV to Section 300 IPC.

37. In the result, the Appeal is partly allowed. The Appellant's conviction under Section 302 IPC is altered to the one under Section 304 Part I IPC. As per the nominal roll, the Appellant has already served sentence for eight years and eight months. No purpose would be served by sending the Appellant again to jail. In the facts and circumstances, the Appellant is sentenced to undergo imprisonment for the period already undergone for the offence punishable under Section 304 Part I IPC and to pay fine of ` 500/- or in default of payment of fine, to undergo Simple Imprisonment for one week.

38. The conviction and sentence for the offence under Section 324 IPC for causing injuries to Raju and Ramji Lal is maintained. As per the order of the Trial Court, the sentences were to run concurrently and thus the Appellant has already served his sentence under Section 324 IPC too. The Appellant is permitted to deposit the

fine by 15th October, 2011 (if not deposited already), failing which he shall serve the simple imprisonment for one week as stated earlier.

39. The Registry shall transmit the Trail Court records and this judgment forthwith to ensure compliance.

(G.P. MITTAL) JUDGE

(S. RAVINDRA BHAT) JUDGE SEPTEMBER 30, 2011 vk