Sangeet Lodha, J.
1. This appeal is directed against judgment and order dated 7.9.07 passed by the Additional Session Judge, Srikaranpur in Sessions Case No.16/05,
whereby the appellants have been convicted for offence under Section 302 IPC and sentenced to undergo life imprisonment with fine Rs.5,000/- each;
on default in payment of fine to further undergo three months’ simple imprisonment.
2. In the nutshell, the prosecution story may be summarized thus: On 30.11.04, complainant Navraj Singh submitted a written report (Ex.P/1) stating
therein that in the morning around 10 A.M., he alongwith Sukhraj Singh and Devendra Singh went to the agriculture field comprising murabba no.21
chak 23F Rohi Kaminpura for lifting irrigation availing his water turn. Out of the said field, Sukhraj Singh had taken 12.5 bighas from Devendra Singh
and 4½ bighas from Darshan Singh for cultivation on contract basis. But Sukhdev Singh s/o Harjinder Singh wanted to avail the water turn of his
uncle Darshan Singh. On this issue, on several occasions, the dispute arose in between Sukhdev Singh and Sukhraj Singh. On the fateful day, for
convincing Sukhdev Singh, the complainant and Devendra Singh were taken by Sukhraj Singh to the outlet (nakka). At the outlet, Sukhdev Singh and
his son Amarjeet Singh both were standing with kassi in their hands and while opening the outlet, they were cultivating their field. Around 11 A.M.,
Sukhraj Singh told Sukhdev Singh and his son Amarjeet Singh that it is his water turn and their water turn will start later. Then Sukhdev Singh told that
he may be permitted to avail the water turn to irrigate his mustard crop. While Sukhraj Singh was trying to convince Sukhdev Singh and Amarjeet
Singh, at that moment, both father and son told Sukhraj Singh that he is imposing his leadership for a long, he need to be taught a lesson. Amarjeet
Singh while shouting with an intention to cause death, inflicted kassi blow on the head of Sukhraj Singh, due to which, he fell down and blood started
oozing out from his head and another kassi blow was inflicted by Sukhdev Singh on the face of Sukhraj Singh, with an intention to cause death. The
complainant and Devendra Singh kept on saying that what are you doing, would you kill him, he will get injured, while they were saying so, Amarjeet
Singh and Sukhdev Singh inflicted injuries with kassi on the head and face of Sukhraj Singh with an intention to cause death and ran away with
kassi towards Kaminpura. On raising hue and cry by them (Navraj Singh and Devendra Singh), Sheoji Kumar, Sukhraj Singh Ex.Sarpanch and
Rameshwar Lal etc. who were working in the field and passage nearby came there. Sukhraj Singh was taken to hospital in trolly of Sarpanch Sukhraj
Singh. On the way to the hospital, Sukhraj Singh succumbed to the injuries, whose dead body was kept in mortuary of Government Hospital, Sri
Ganganagar.
3. On the basis of the written report (Ex.P/1), the police registered the FIR against the accused Sukhdev Singh and Amarjeet Singh for offence under
Section 302/34 IPC and the investigation commenced.
4. During the investigation, necessary memos were prepared. Blood stained clothes of the deceased, blood stained soil and control soil were seized.
After inquest proceedings, the dead body of the deceased was subjected to autopsy. The statements of the witnesses were recorded under Section
161 Cr.P.C. Accused persons Sukhdev Singh and Amarjeet Singh were arrested and at their instance, blood stained iron kassis were recovered. The
articles recovered and seized as aforesaid were sent for examination to Forensic Science Laboratory and FSL report was obtained.
5. After completion of investigation, the police filed charge sheet against accused Sukhdev Singh and Amarjeet Singh for offences under Section 302,
302/34 IPC before the Additional Chief Judicial Magistrate, Srikaranpur. The matter was committed for trial to the Court of Additional Sessions Judge,
Srikaranpur.
6. The trial Judge framed the charges against the accused appellants for offence under Section 302 and in the alternative under Section 302/34 IPC.
The accused appellants pleaded not guilty and claimed trial.
7. During the trial, the prosecution got examined as many as 14 witnesses (PW 1 to PW 14) and documentary evidence was exhibited as Ex.P/1 to
Ex.P/48. The accused appellants were examined under Section 313 Cr.P.C. No evidence was led in defence. Â
8. The learned trial Court after consideration of the rival submissions and the evidence on record, convicted and sentenced the accused appellants
as indicated above. Hence, this appeal.
9. Heard the learned counsels for the appellants and learned Public Prosecutor.
10. Mr. Nishant Bora, learned counsel submitted that the conviction of the appellants is based on testimony of eye witnesses who being closely related
to the deceased were not reliable. It is submitted that the independent witnesses available in the nearby fields were not produced by the prosecution
for examination. It is submitted that even if the prosecution evidence is taken on its face value, the incident had occurred all of a sudden and there was
no premeditated assault on deceased. It is submitted that on the facts and in the circumstances of the case, it cannot be said that the injuries were
inflicted with an intention and knowledge that the same could have caused death. Learned counsel submitted that offence would apparently fall under
Execption 4 to Section 300 IPC and thus, the conviction of appellants would not travel beyond provisions of Section 304 IPC. In support of the
contention, learned counsel has relied upon a decision of the Hon’ble Supreme Court in the matter of “Ajit Singh vs. State of Punjabâ€, JT
2011 (10) SC 177.
11. On the other hand, learned Public Prosecutor submitted that merely because the eye witnesses are closely related to the deceased, their testimony
cannot be disbelieved. As a matter of fact, the close relatives of the deceased would always be interested in seeing that the actual culprit is punished.
It is submitted that the guilt of the appellants stands proved beyond reasonable doubt on the basis of the deposition of the eye witnesses and other
corroborative evidence. Learned Public Prosecutor submitted that looking at the nature of injuries caused to the deceased by the appellants, it is
apparent that they had clear intention to kill the victim and thus, the conviction of the appellants for offence of murder cannot be faulted with.
12. Learned counsel appearing for the complainant contended that the injuries caused to the deceased were found sufficient in the ordinary course of
nature to cause death and thus, offence falls under Section 302 IPC and not under Section 304 IPC. Learned counsel submitted that the injuries were
inflicted on the head and jaw of the deceased when the deceased was just sitting at the outlet and thus, taking undue advantage, the accused having
acted in cruel manner, the Exception 4 to Section 300 IPC is not attracted in the matter and therefore, the conviction of the appellants under Section
302 IPC does not warrant any interference by this court in exercise of its appellate jurisdiction. In support of the contention, learned counsel has relied
upon the decisions of the Hon’ble Supreme Court in the matters of “Kukar Singh vs. State of Rajasthanâ€, AIR 1993 SC 2426, “Kamta
Prasad vs. State of U.P.â€, 1994 SCC (Cri.) 290 and “Babu & Anr. vs. State represented by Inspector of Police, Chennaiâ€, (2013) 4 SCC 448.
13. We have considered the rival submissions and scanned the evidence on record thoroughly.
14. The Medical Jurist Dr. B.M.Sharma (PW 13) conducted autopsy of the dead body of Sukhraj Singh. As per the post mortem report (Ex.P/48),
following ante mortem injuries were found on the person of the deceased Sukhraj Singh:
1. Incised wound 7â€x1†Bone deep left frontal to Rt. occipital  with Bone fracture.Â
2. Incised wound 3/4†x 1/6†muscle deep left eye brow.       Â
3. Contusion 2â€x 1†left upper Eye lid.                                  Â
4. Incised wound 3â€x 1†Rt. angle of mouth to chin with mandible fracture.          Â
5. Incised wound 1 ½†x 1/4†bone deep in centre of chin with fracture bone.         Â
6. Abrasion 1/4†x 1/8†below umbilicus.         Â
7. Incised wound (3) 3/4†x 1/6†to 1/4†x 1/8†with fracture of nasal bone.  Â
8. Incised wound 1/2†x 1/6†x bone deep left to right ale of nose with fracture of bone (maxilla)
The cause of death was opined to be head injury i.e. injury no.1, which is found sufficient to cause death in natural course of life.
15. Dr. B.M.Sharma (PW 13) in his deposition while confirming the injuries sustained by the victim, categorically stated that the death was caused on
account of ante mortem injury on the head, which was sufficient to cause death in ordinary course of nature. Thus, as per the medical evidence on
record, the death of Sukhraj Singh was concededly homicidal in nature.
16. The prosecution case is founded on testimony of eye witnesses P.W.1-Navraj Singh and P.W.9-Devendra Singh and the witnesses P.W.2-Sukhraj
Singh s/o Mukund Singh and P.W.6Sheoji Lal, who had seen the accused persons fleeing away from the place of occurrence with kassi in their hands.
The prosecution also relied upon the corroborative evidence of recovery of the weapon of the offence at the instance of the accused persons and the
FSL report(Ex.P/35).
17. Before proceeding to consider the evidence adduced at the trial, we deem it appropriate to refer to the position of law settled on the issue whether
it is safe to convict an accused on the testimony of eye witnesses, who are alleged to be interested witnesses.
18. In ‘Vadivelu Thevar vs. State of Madras’, AIR 1957 SC 614, the Hon'ble Supreme Court observed:
“...xxx.... It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of
uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of
witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the
discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of
the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no
legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a
single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of
witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of
law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact, Generally
speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty to its conclusion either way- it may convict or may acquit on the testimony of a
single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court
equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for
corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses.
Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be
indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of
a disputed fat. The court naturally has to weigh carefully such a testimony open to suspicion and if it is satisfied that the evidence is reliable and free
from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many
precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this
rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very
nature, suspect, being that of a particular in crime. But, where there no much exceptional reasons operating, it becomes the duty of the court to
convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of
the first witness, which is the only reliable evidence in support of the prosecution.â€(Emphasis supplied)
19. In Masalti & Ors. vs. The State of Uttar Pradesh, AIR 1965 SC 202, the Hon'ble Supreme Court observed:
“... There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very
careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine;
whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But, it would, we think, be
unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested
witnesses. Often enough, where factions prevail in villages and murders are committed as a mechanical rejection of such evidence on the sole ground
that it is a partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated.
Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be
accepted as correct.â€(emphasis supplied)
20. In “Anil Phukan vs. State of Assamâ€, 1993 Cri.L.J.1796, the Hon'ble Supreme Court observed that a conviction can be based on the
testimony of single eye-witness and there is no rule of law of evidence which says to the contrary provided that sole witness passes the test of
reliability. However, where the single eyewitness is not found to be wholly reliable witness, in the sense that there are some circumstances which may
show that he could have any interest in the prosecution then the courts generally insist upon some independent corroboration of his testimony, in
material particulars, before recording conviction. It is only when the courts find that the single eye witness is wholly unreliable witness that his
testimony is discarded in toto.
 In the said case, where the alleged single eye-witness being a close relative of the deceased and though alleged to be present at the place of
occurrence but did not attempt to save deceased and also his statement about the time of occurrence was contrary to the medical evidence, the court
observed that said eye witness could not be relied upon for the conviction of the accused.
21. Thus, it stands well settled that the absence of independent witness by itself may not give rise to the adverse inference against the prosecution and
credibility of the witness of the close relative of the deceased cannot be discarded solely on the ground that he is an interested witness if it otherwise
inspires confidence. However, the court must scrutinize such evidence with care and caution. Where the testimony of eye witnesses is not found to be
wholly reliable, the court must insist upon corroboration of their testimony.
22. In the backdrop of position of law settled as aforesaid, we proceed to examine the evidence of eye witnesses P.W.1-Navraj Singh and P.W.9-
Devendra Singh.
23. P.W.1-Navraj Singh deposed that on 30.11.04 around 10 A.M. he, Sukhraj Singh and Devendra Singh went to the agriculture field comprising
murabba no.21 chak 23F Rohi Kaminpura. There existed a water dispute between Sukhraj Singh, Sukhdev Singh and Amarjeet Singh and therefore,
he had gone with Sukhraj Singh and Devendra Singh to outlet and tried to persuade them but at 10.55 A.M. they diverted the outlet to lift irrigation
to their agriculture field. Thereupon, Sukhraj Singh told Sukhdev Singh and his son Amarjeet Singh that it is his turn to take water, their water turn
will come later but Sukhdev Singh told that he will avail the water turn to irrigate his mustard crop. When Sukhraj Singh was still trying to convince
them, both father (Sukhdev Singh) and son (Amarjeet Singh) told Sukhraj Singh that he is imposing his dominance for a long, he will be taught lesson
and while saying so, Amarjeet Singh gave kassi blow on the head of Sukhraj Singh. When he and Devendra Singh raised hue and cry that he will die,
Amarjeet Singh and Sukhdev with an intention to cause death inflicted blows on the face and head of Sukhraj Singh by kassi. After inflicting the
injuries, the accused persons fled away towards Kaminpura. On raising hue and cry by them (Navraj Singh and Devendra Singh), Sheoji Ram, Sukhraj
Singh Sarpanch and Rameshwar Lal, who were passing on the way, reached on the spot. Thereafter, Sukhraj Singh was taken out of the water and
put on the water course, he was then taken to Fusewala in tractor trolly of Sarpanch Sukhraj Singh and from there, while proceeding to Government
Hospital, Sri Ganganagar in the car of Kulvinder Singh, Sukhraj Singh succumbed to the injuries. After reaching the Government Hospital, dead body
of Sukhraj Singh was kept at the mortuary.
In the cross examination, the suggestion of the defence that Devendra Singh was also having kassi in his hands, was denied by the witness and said
that only Sukhraj Singh was having kassi in his hand. They all the three had reached the outlet independently on their own motor cycles from different
places. Sheoji Ram, Rameshwar Lal and Sarpanch Sukhraj had reached the place of occurrence almost at the same time. When the accused persons
inflicted injuries, they were at the distance of 1520 ft. and before they could raise hue and cry, the injuries were inflicted. He deposed that while lifting
the body of deceased Sukhraj Singh from water course, their clothes had got blood stained which were not shown to the police, though they were
apprised of the same but, their clothes were not seized. He deposed that the injury was inflicted on the person of the deceased Sukhraj Singh while he
was sitting. Amarjeet Singh inflicted injuries on the head of deceased Sukhraj Singh  from the left side as a result thereof, half of his body fell on the
outlet of the water course and remaining half on water course itself. Sukhdev Singh inflicted injuries to Sukhraj Singh from the right side. He deposed
that on the person of the deceased, only two injuries as indicated by him, were inflicted.
24. P.W.9-Devendra Singh deposed that on the request being made by Sukhraj Singh and his brother P.W.1-Navraj Singh for conciliation in respect of
the water dispute existing between Sukhraj Singh on one hand and Sukhdev Singh and Amarjeet Singh on the other. He had gone to Chak 23F where
Sukhdev Singh and Amarjeet Singh were standing with the kassi in their hands. When they tried to conciliate, accused appellants agreed, thereupon,
Sukhraj Singh sat at the outlet and he and Navraj Singh while indulging in conversation, stood at a short distance. At 10.55 A.M., Sukhraj Singh and
Amarjeet Singh diverted outlet to their agriculture field, on this Sukhraj Singh said it is his turn to take water and therefore, he should be permitted to
irrigate his mustard crop. Amarjeet Singh inflicted kassi blow on the head of Sukhraj Singh, who fell down at the outlet, at that time Sukhdev Singh
inflicted kassi blow on the face of deceased Sukhraj Singh.
On their raising hue and cry, they fled away from the place. Sheoji Ram Kumhar, Sukhraj and his tractor driver Rameshwar Lal reached there.
Sukhraj Singh was taken out of the water with the help of all the person and was taken to Fusewala in a tractor trolly and from there, in Kulvinder
Singh’s car to Government Hospital, Sri Ganganagar but Sukhraj Singh died on the way.
In cross examination, he deposed that they could not try to rescue Sukhraj Singh inasmuch as, they were at some distance and before they could
reach near them, the injuries were already inflicted to deceased Sukhraj Singh. Sukhraj Singh was taken out from water course by he, Navraj Singh,
Sukhraj Singh (Sarpanch) and Sheoji Ram. While lifting Sukhraj Singh from water course, his and Navraj Singh’s clothes got blood stained, this
fact was disclosed by them to the police, however, the police raised no demand for the clothes, had there been a demand, the same would have been
handed over. He deposed that second injury was caused by Sukhdev Singh from the front while Sukhraj Singh was lying on the water course.
According to him, one more injury was inflicted after Sukhraj Singh fell down in the water course.
25. A bare perusal of the deposition of the eye witnesses reveals that there is no significant variation in their narration of the incident occurred as also
the role played by each of the accused in belabouring Sukhraj Singh. Of course, according to P.W.1-Navraj Singh, two injuries were caused to the
deceased Sukhraj Singh by kassi; one by the accused Amarjeet Singh on the head and another by Sukhdev Singh on the face whereas, as per
P.W.9Devendra Singh, Sukhdev Singh had inflicted two injuries. As per the post mortem report (Ex.P/48), eight ante mortem injuries were found on
the person of the deceased, out of which six were incised wound, one contusion and one abrasion. Looking at the injuries found on the person of the
deceased, the possibility of more than one injury being caused by a single blow could not be ruled out. The injuries contusion and abrasion might have
been caused even on account of the deceased felling down in the water course on blows being inflicted by the accused persons by kassi as aforesaid.
Thus, we do not find any reason to disbelieve the testimony of eye witnesses.
26. It is pertinent to note that P.W.2-Sukhraj Singh, P.W.3Rameshwar Lal and P.W.6-Sheoji Lal, who had reached the place of occurrence on hue
and cry being raised by the eye witnesses P.W.1-Navraj Singh and P.W.9-Devendra Singh, have categorically deposed that they had seen accused
Sukhdev Singh and Amarjeet Singh fleeing away from the place of occurrence with kassi in their hands. That apart, on the information furnished by
Sukhdev Singh and Amarjeet Singh under Section 27 of Evidence Act vide Ex.P/33 & P/34 respectively, blood stained kassis were recovered vide
Ex.P/17 & P/19 respectively. The recovery effected stands confirmed by the deposition of P.W.7-Balraj Singh. As per FSL report (Ex.P/35), the
kassis recovered were found stained with blood of group ‘B’ i.e. the blood group of the deceased. Thus, the testimony of the eye witnesses
stand corroborated by other evidence on record.
27. In view of the discussion above, the finding of guilt recorded by the learned trial Judge that the accused appellants inflicted injuries by kassi on
the person of the deceased and thus, caused his death, cannot be faulted with.
28. This takes us to consider whether the act of the accused persons in causing homicidal death of the deceased Sukhraj Singh was without
premeditation in sudden fight or in heat of passion upon a sudden quarrel and they did not take any undue advantage or acted in a cruel or unusual
manner and for this reason, the provisions of Exception 4 to Section 300 IPC are attracted in the matter.
29. Indisputably, the application of Exception 4 to Section 300 IPC depends upon the facts and evidence in a given case. But before proceeding to
determine as to whether taking into
consideration the facts and evidence in the instant case, the act of the accused appellant falls within the Exception 4 to Section 300, it would be
appropriate to discuss the law laid down in this regard by the Hon’ble Supreme Court after consideration of all the relevant legal aspects.
30. In ‘Andhra Pradesh v. Rayavarapu Punnayya and Anr.’ (1976) 4 SCC 382, the Hon’ble Supreme Court while laying down the broad
guidelines for determination of the question whether the offence committed is “murder†or “culpable homicide not amounting to murderâ€
observed :
“21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is “murder†or
“culpable homicide not amounting to murderâ€, on the facts of a case, it will be convenient for it to approach the problem in three stages. The
question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof
of such casual connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused
amounts to “culpable homicide†as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for
considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved
by the prosecution bring the case within the ambit of any of the four clauses of the definition of “murder†contained in Section 300. If the answer
to this question is in the negative the offence would be “culpable homicide not amounting to murderâ€, punishable under the first or the second part
of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive,
but the case comes within any of the exceptions enumerated in Section 300, the offence would still be “culpable homicide not amounting to
murderâ€, punishable under the first part of Section 304, of the Penal Code.â€Â
31. In Budhi Singh Vs. State of H.P. 2012(13) SCC 663, the Hon’ble Supreme Court while considering various earlier decisions observed :
“13. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This
will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the Court is to examine from the point
of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to
commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and
sudden provocation would normally mean that a person placed in such circumstances could lose selfcontrol but only temporarily and that too, in
proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of
injury.â€Â (emphasis added)
32. In ‘Surinder Kumar v. Union Territory of Chandigarh’ (1989) 2 SCC 217, the Hon’ble Supreme Court laid down the requirements for
invoking 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)Â the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not
relevant nor it is 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…….xxxxxâ€
33. In ‘State of Rajasthan vs. Poona Ram & Ors.’, AIR 2017 SC (Criminal) 144, where the fatal injuries were caused by the number of
accused persons on the head and ribs and some of the injuries proved fatal, the court observed:
“7. Having considered all the relevant materials and the impugned judgment, as well as the rival contentions, we are of the view that the High
Court erred in applying Section
304-II to the offence at hand. Section 304-I of the IPC would clearly cover such an offence where the accused persons caused indiscriminate assault
and some of the injuries proved fatal. By the rashness of their act, the accused persons must be treated to be fully in know of the consequence of their
acts including possible death. Hence, in the facts of the case, we set aside the impugned judgment and order under appeal and convict the respondent
Nos. 1 to 4 for offence under Section 304-I of the IPC. The facts of the case and the ends of justice require that the accused persons should serve at
least eight years of rigorous imprisonment and also pay a fine of Rs.25,000/- (Rupees twenty five thousand) each and in default undergo further
rigorous imprisonment of six months. We order accordingly. If the fine is realized, the same should be paid as compensation to the heirs of the
deceased, if any.†(emphasis supplied)
34. In Ajit Singh’s case (supra) relied upon by the learned counsel for the appellants, the Hon’ble Supreme Court while considering the scope
of Exception 4 to Section 300, observed:
“10. It is undoubtedly true that application of exception 4 depends upon the facts and evidence in a given case and although there are innumerable
case laws and commentaries on the subject, the courts more often than not have to keep wondering into the wilderness of facts as to whether a given
case would fall under Section 302, I.P.C. or would fall under Section 304 Part-I or II of the I.P.C.â€
In the said case where the accused was not armed with the weapon and it is only when deceased hurled filthy abuses he directed his servant to bring
a kassi and ordered him to catch hold of the deceased and after that he gave two blows on the neck of the deceased as a result of which, she died on
the fourth day of the incident, the court observed that the incident happened on the spur of the moment and was not premeditated assault on the
deceased and accordingly, while observing that it can be logically and reasonably inferred that the accused although inflicted grievous injury on the
neck of the deceased and gave two blows, the assault was not the result of pre-planning or premeditated assault and the same did not result in instant
death of the deceased rather she was taken to the hospital for treatment where she succumbed to the injury after four days of the incident, the
conviction of the accused was converted from 302 to 304Â Part I IPC.
35. In Nadodi Jayaraman vs. State of Tamilnadu, AIR 1993 SC 777, where 32 injuries were caused to the deceased, most of the injuries were on non
vital parts of the body, on the facts and in the circumstances of the case, the court held that appellant therein do not appear to have had the intention
of causing the death of the deceased or even causing such bodily injuries likely to cause death. They can at the best be attributed with the knowledge
that their act is likely to cause death or causing such bodily injury as was likely to cause death.
36. Coming to the decisions cited by the learned counsel for the appellants, in Kikar Singh’s case (supra), the Hon’ble Supreme Court
observed that where a person during the course of sudden fight, without premeditation and probably in the heat of passion, took undue advantage and
acted in a cruel manner in using a deadly weapon, there was no ground to hold that the act of the accused did not amount to murder. In the said case,
where the accused had inflicted two injuries on a fallen man, the court held that he intended to inflict those injuries though the first injury may be
assumed to have been inflicted during the altercations and, therefore, the offence is one of murder and accused was rightly convicted and sentenced
to imprisonment for life under Section 302 IPC.
37. In Kamta Prasad’s case (supra) where the accused who was already armed with a knife, inflicted the fatal injuries on the helpless deceased,
who was already caught by other accused, the court held that the accused was rightly been convicted under Section 302 IPC.
38. In Babu’s case (supra), the court observed that the culpable homicide is not murder if it is committed without premeditation in a sudden fight in
the heat of passion upon sudden quarrel provided that offender has not taken undue advantage or acted in accrual or unusual manner. In the said case,
there was no evidence to show that deceased was armed with in any manner and on the other hand, the accused persons were armed with knives and
attacked the deceased on his head and face even after he fell down and thus, the court opined that offenders having taken undue advantage and acted
in cruel and unusual manner towards the deceased were rightly held guilty of the offences under Section 302 read with Section 34 IPC.
39. In the backdrop of the settled position of law discussed above adverting to the facts and evidence in the instant case, apparently there was a
dispute existing between the deceased Sukhraj Singh on the one hand and the accused appellants Sukhdev Singh and Amarjeet Singh on the other,
regarding water turn. On the fateful day, Sukhraj Singh, Devendra Singh and Navraj Singh had gone to the outlet for the purpose of resolving the
dispute by way of conciliation. It is not in dispute that deceased Sukhraj Singh insisted for enforcement of his water turn to irrigate his field, which he
had taken on contract basis from Darshan Singh, the holder of the slip for the water turn. Notwithstanding the efforts for conciliation made by the
deceased Sukhraj Singh, P.W.-1 Navraj Singh and P.W.-9 Devendra Singh, the accused appellants diverted the outlet to lift irrigation to their
agriculture field. Thereupon, Sukhraj Singh told the appellants Sukhdev Singh and Amarjeet Singh that it is his turn to avail the water turn and their
water turn will come later but Sukhdev Singh insisted that he will avail the water turn to irrigate his mustard crop. At this juncture, while the deceased
was sitting on the water course, the accused persons inflicted injuries on his head and face. It appears that on account of the deceased insisting for the
enforcement of his right to take water being the cultivator of the land taken on contract basis, all of a sudden, without premeditation, the accused
persons got provocated and inflicted blows on the persons of the deceased by kassi which they were already having in their hands. As per the post
mortem report, only one injury i.e. head injury caused to the deceased is found fatal. Merely because, the injuries were inflicted at the time when
deceased Sukhraj Singh was sitting on the outlet, it cannot be said that the injuries were caused with an intention to kill him. As per the deposition of
the eye witness P.W.1-Navraj Singh, the accused persons inflicted only two injuries; one on the head and another on the face, whereas as per yet
another eye witness P.W.9Devendra Singh, accused Sukhdev Singh inflicted injury on the head of the deceased and Amarjeet Singh inflicted two
injuries on the person of the deceased. As per the eye witnesses, the accused persons did not give repeated blows to the deceased rather on their
raising hue and cry, they fled away from the place of occurrence. As per the medical report only the injury caused on the head of the deceased was
found fatal. Thus, on the facts and in the circumstances of the case, it cannot be said that the accused persons have taken undue advantage and acted
in a cruel and unusual manner. But, looking at the number and nature of the injuries caused by the accused persons under sudden provocation by
using the weapon kassi, it can be safely concluded that the accused had intention to cause such bodily injury which are likely to cause death.
40. In view of the discussion above, we are of the considered opinion that the conviction of the accused appellants under Section 302 IPC deserves to
be set aside and instead they deserve to be convicted for offence under Section 304 Part I/34 IPC.
In the result, the appeal is partly allowed. The conviction of the accused appellants under Section 302 IPC is set aside. The appellants Sukhdev Singh
and Amarjeet Singh are convicted for offence under Section 304 Part-I/34 IPC and sentenced to suffer rigorous imprisonment for ten years. The
appellants have already undergone the sentence for the period more than the sentence awarded. Accordingly, they are directed to be released from
the custody forthwith if they are not required in any other case. However, each of the appellants shall execute a bail bond in sum of Rs. 25,000/- to
the satisfaction of the trial court in terms of provisions of Section 437A Cr.P.C.
