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PETITIONER: RAM KARAN & ORS.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT04/03/1982

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA DESAI, D.A. VARADARAJAN, A. (J)

CITATION:  1982 AIR 1185            1982 SCR  (3) 395  1982 SCC  (2) 184        1982 SCALE  (1)288

ACT:      Sentencing-Imposition of  appropriate  sentence,  under section 302  or 304  depends on  the nature  of  offence  of culpable homicide-Evidence  showing homicide by both parties in a  Civil Suit  in a  sudden fight  in the heat of passion upon a  quarrel-Appropriate  sentence  would  be  one  under sections 304(1)/34  Indian Penal Code and not under sections 302/34 Indian  Penal  Code-Probability  of  culpability  not proved by legal evidence-Benefit of doubt must ensue in such cases.

HEADNOTE:      The five  accused Ram  Karan, his sons Sunil Kumar, Ved Prakash,  Anil   Kumar,  Satish   Kumar  and   deceased  son Chhoteylal filed a Civil Suit 34 of 1967 against the decased Prakash Chandra,  his brother  Gopi Chandra  and one Krishan Devi, alleging  that  while  constructing  their  new  house Prakash Chandra had encroached upon a portion of their land. In that suit appellant Ram Karan got Commissioners appointed by  the   court  on   five  or   six  occasions  for  taking measurements of  the properties  with the  object of proving his case  of encroachment  by Prakash Chandra, the deceased. But these  Commissioners’ reports  were  set  aside  on  the objection  raised   by  Prakash   Chandra  and   the   other defendants. The  last Advocate Commissioner Mr. Mathur (C.W. 1) visited  the spot  on 6-9-1970,  the day  of  occurrence, accompanied by  Mr. Zafar  Hussain (C.W. 2) who appeared for deceased Prakash Chandra and Mr. Mahesh Chandra (C.W. 3) who appeared for  Ram Karan.  After the completion of the survey work and  measurements at  about 1  P.M. when  all the three lawyers were  standing and  talking in front of the house of the appellants  deceased Prakash  Chandra and  Umesh Chandra came there  to talk  to the Commissioner, which interference was not  liked by  the appellants. This resulted in a sudden quarrel, exchange  of hot  words later  followed by  assault with knife  etc., on  the  appellants  which,  according  to prosecution, was in the exercise of right of self-defence by the prosecution  party, particularly  Dinesh  Chandra  (P.W. 11). On  the side  of the appellants Ram Karan’s son Chhotey Lal (accused)  died and  on  the  side  of  the  prosecution Prakash Chandra  and his  son Umesh  Chandra died and Dinesh

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Chandra (P.W.  11) was  grievously  injured.  All  the  five accused were  tried and  convicted by the Sessions Judge for offences under  sections 302/149  I.P.C.  (two  counts)  and 307/149 I.P.C.  and were  sentenced to imprisonment for life and rigorous  imprisonment for  four years respectively. Ram Karan was  also convicted under section 147 and sentenced to undergo rigorous imprisonment for one year and his four sons were convicted  under section  148 and sentenced to rigorous imprisonment for two years. In appeal the 396 High Court  acquitted Anil Kumar and Satish Kumar, set aside the conviction  and sentence  under  sections  147  and  148 I.P.C. in  respect of  the  rest  and  confirmed  (a)  their sentence of life imprisonment by altering the conviction one under sections  302/34 I.P.C. and (b) their sentence of four years rigorous  imprisonment to  one under  sections  307/34 I.P.C. Hence  the appeal  by special  leave by Ram Karan and his two sons.      Acquitting Ram  Karan and  allowing the  appeal of  the other two in part, the Court ^      HELD: Having  regard to  the age  of the  appellant Ram Karan who  was about  70  years  old  at  the  time  of  the occurrence, there  is a  reasonable doubt  as to  whether he would have caught hold of the young man Dinesh Chandra (P.W. 11) by  his waist  and whether  he would  have asked all his sons to  attack and  kill Prakash  Chandra and his sons. The appellant Ram  Karan is  entitled to be set at liberty. [409 D-E]      BY MAJORITY      Per Fazal Ali, J. (and on behalf of D.A. Desai, J.)      1:1. Exception  4 to  section 300  I.P.C. provides that culpable homicide  is not  murder if it is committed without pre-meditation in a sudden fight in the heat of passion upon a sudden  quarrel and  without the  offenders  having  taken undue advantage  or acted in a cruel or unusual manner. [399 D]      1:2. In  this case, the incident occurred upon a sudden quarrel and  no one took undue advantage or acted in a cruel or unusual  manner on either side. Prakash Chandra and Umesh Chandra on  the side of the prosecution died and Chhotey Lal on the  side of  the accused  died and  each of  them met  a homicidal death. Therefore exception 4 to section 300 Indian Penal Code  is clearly  attracted and  the offence of murder would be  reduced to  culpable homicide in respect of Sushil Kumar and  Ved Prakash  and, therefore, they would be guilty of committing  on offence  under section  304(1)/34 I.P.C. A sentence of  rigorous imprisonment  for seven years would be appropriate; conviction  and sentence  under sections 307/34 I.P.C. being in order would run con currently.                                               [399 B-C, G-H, 400 A]      Per Varadarajan, J. (contra).      Sunil Kumar  and Ved  Prakash were  the aggressors  and they have been rightly convicted under section 302 read with section 34  I.P.C. for  the offence  of  murder  of  Prakash Chandra land  Umesh Chandra and under sections 307/34 I.P.C. with reference to P.W. 11. Neither Exception 2 nor Exception 4 to section 300 I.P.C. would apply to the facts of the case and the offence cannot be brought under section 304 (Part I) I.P.C. The  evidence of  P.Ws. 1,  10 and  11 proves  beyond reasonable doubt  that these  two appellants Sunil Kumar and Ved Prakash  attacked the deceased Prakash Chandra and Umesh Chandra with  knives as  a result of which both of them, who had no  weapons died  on the  spot and  these two appellants

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attacked P.W.  11 with knives with such intention that if he had died  as a  result of the injuries sustained by him they would be  guilty of  murder in  furtherance of  their common intention to  murder. Their  conviction under section 307/34 is proper. [408 F-H, 409 C-D] 397

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 329 of 1975.      From the Judgment & Order dated the 15th April, 1975 of the Allahabad High Court in Crl. A. No. 1144 of 1971.      R.L. Kohli and S.K. Sabharwal for the Appellants.      D.P. Uniyal and R.K. Bhatt for the Respondent.      The following Judgments were delivered:      FAZAL ALI,  J. This appeal by special leave is directed against a  judgment dated  15.4.1975 of  the Allahabad  High Court by which the Judges of the High Court while acquitting the accused,  Anil  Kumar  and  Satish  Kumar,  altered  the conviction of  Ram Karan,  Sunil Kumar  and Ved Prakash from one under  ss. 302  and 307  read with  s. 149 I.P.C. to one under ss.  302 and 307 read with s. 34, I.P.C. and confirmed the sentences  of imprisonment  for life  imposed  on  these appellants.      The prosecution  case has been detailed in the judgment of the  High Court  as also  in the  judgment of our learned Brother Varadarajan J. and it is not necessary to repeat the same. So far as the question of occurrence is concerned that has been  proved beyond  reasonable doubt  as pointed out by Brother Varadarajan,  J. as  also by the High Court. We also agree with  the appreciation  of  the  evidence  by  Brother Varadarajan, J.  and his  conclusion that  the two  deceased died at the hands of the appellants.      The entire  occurrence seems to have been the result of a chronic  land dispute between the parties in which several commissions were  issued and which ultimately proved futile. The prosecution  has no  doubt proved  that the  two persons were killed  at the  hands  of  the  accused  and  that  the occurrence had  taken place  while  the  Commissioners  were present at  the spot  though they  were not  able to see the actual assault  and were,  therefore, not  in a  position to depose the  detailed manner  in which  the assault had taken place.      The only  serious question  on which  we would  like to sound a  discordant note from our Brother Varadarajan, J. is as to  the actual  nature of  the  offence  which  had  been committed by the appellants, Sunil Kumar and Ved Prakash. It would appear from the evidence 398 of CW  1 as  also other  eye-witnesses that the accused were also assaulted with knife and one of them, Chhotey Lal, died as a  result of  the injuries  caused to  him.  The  medical evidence as  also the  evidence of  CW 1  clearly shows that there was  exchange of hot words, followed by the assault on the appellants  which, according  to the  prosecution, was a result of  the exercise  of self-defence  by the prosecution party, particularly Dinesh Chandra.      In fact,  the learned Sessions Judge and the High Court held that  the accused  were the  aggressors and, therefore, they had  no right of private defence. In order to ascertain whether the  accused had  the right  of private defence, the genesis of  the incident has to be traced. Now, in this case the prosecution witnesses being partisan, the only important

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injured witness  Dinesh Chandra,  PW 11 being the son of the deceased, it  would be  necessary to ascertain with accuracy the genesis  of the quarrel as revealed from the evidence of Court witnesses  not shown to be partisan. CW 1, Prem Narain Mathur is  the practising  advocate and  was appointed  as a Commissioner. He  was accompanied  by Mahesh Chandra, Vakil, CW  3,  advocate  appearing  on  behalf  of  the  plaintiffs (accused Ram  Karan) in  the suit  in which  Commission  was issued and Shri Jafar Imam, CW 2, learned advocate appearing for the  defendants in the same suit. C.W. 1 and C.W. 3 were at the  house of  accused 1  Ram Karan.  C.W.  1  says  that several persons  assembled at  that time at the house of Ram Karan. He is a bit vague but he says that at that time after tea was served and he was about to leave that place he saw a person lying  on the  pavement of  the  road.  This  injured person was  lying in  front of  the house  of accused  1 Ram Karan. This  statement has  not been  questioned  in  cross- examination nor adversely commented upon. It gives a clue to the genesis of the occurrence. After measurements were taken as directed  by the  Court, C.W.  1 and  C.W. 3  came to the house of  accused 1 Ram Karan. Some persons collected there. According to C.W. 1 injured persons were seen lying in front of the  house of  accused 1  and that was none else than the deceased. If  amongst those  who collected at the house were the two deceased and P.W. 11 Dinesh Chandra, another injured witness on  the side of the prosecution, it is crystal clear that the  prosecution witnesses and the two deceased Prakash Chandra and Umesh Chandra had come to the house of accused 1 Ram Karan.  How, if one of them was armed with a knife, they must have  come with  a view to either picking up quarrel or to guard  themselves. The  occurrence took place in front of the house of 399 accused 1.  On the  side of  the prosecution Prakash Chandra and Umesh Chandra received fatal injuries and Dinesh Chandra was also  injured. However,  on  the  side  of  the  accused Chhotelal, son of accused 1 Ram Karan, suffered six injuries one of  which proved  fatal and  he died.  Accused Ram Karan himself was  also injured.  Injuries on both sides appear to have been caused with sharp cutting weapon like knife. It is easy to infer the genesis of the dispute.      Both the  parties were  completely exasperated with the litigation. Accused  1 Ram  Karan had summoned Commission on five to  six occasions and his attempt to end the litigation was thwarted  by objections  being  taken  on  the  side  of Prakash Chandra  deceased. Therefore,  both sides were in an exasperated mood.  Suddenly at  the spur of the moment there ensued a  quarrel. Prakash  Chandra and Umesh Chandra on the side of  the prosecution  died and  Chhotelal on the side of the accused  died and each of them met a homicidal death. On the side  of the  prosecution Dinesh Chandra was injured, on the side  of accused  Ram Karan  was injured.  From this  an irresistible inference  ensues that  exception 4  to s. 300, I.P.C. would  be  attracted.  The  exception  provides  that culpable homicide  is not murder, if it is committed without premeditation in  a sudden fight in the heat of passion upon a sudden  quarrel and  without the  offenders  having  taken undue advantage  or acted  in a cruel or unusual manner. All the  ingredients  of  Exception  4  are  satisfied.  Prakash Chandra and  his two  sons and  others came  to the house of accused 1  to protest  for the  work  of  the  Commissioner. Dinesh Chandra  amongst them was armed with a knife. May be, he may  be usually  carrying the  same for  his safety.  The incident occurred  in front of the house of accused 1 upon a sudden quarrel  by this  confrontation with  eyebrows having

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been  raised   because  of   a  persistent  litigation,  the occurrence took  place. There  is no  clear evidence to show that any-one  took undue  advantage or  acted in  a cruel or unusual manner.      Taking an  overall view  of the  situation, we  find no evidence of  any intention  to kill  the two deceased on the part of  the accused because the occurrence itself had taken place suddenly  when, to  begin  with,  the  entire  episode started for  the particular purpose of partitioning the land by the  Commissioners who  had visited the village. In these circumstances we  are satisfied  that Exception 4 of s. 300, I.P.C. is  attracted and  the offence  of  murder  would  be reduced to  culpable homicide  in respect  of accused  Sunil Kumar and  Ved Prakash  and, therefore, they would be guilty of committing 400 an offence  under s.  304(1)/34 I.P.C.  and they  should  be convicted accordingly.  To this  extent, therefore,  we  are unable to  agree  with  Brother  Varadarajan,  J.  that  the conviction of  the appellants  Sunil Kumar  and Ved  Prakash under s.  302 read  with s.  34  of  the  I.P.C.  should  be confirmed.      We, therefore, allow this appeal to the extent that the conviction of  Sunil Kumar  and Ved Prakash are altered from one under s. 302 read with s. 34 of the I.P.C. to that under s. 304(1)/34  I.P.C. and  they  are  sentenced  to  rigorous imprisonment for seven years. Conviction and sentences under s. 307/34,  I.P.C. are maintained and sentences awarded have already been  directed to  run concurrently.  We  allow  the appeal of Ram Karan as indicated by Brother Varadarajan, J.      VARADARAJAN, J.  This Criminal  Appeal by special leave is directed  against the judgment of a Division Bench of the Allahabad High  Court in  Criminal Appeal  No. 1144 of 1971, whereby the  learned Judges, while acquitting two appellants Anil Kumar  and Satish  Kumar of  the charges,  altered  the conviction of  Ram  Karan,  Sunil  Kumar  and  Ved  Prakash, appellants in  this Criminal  Appeal, under  s. 302 and 307, both read with s. 149 I.P.C., into one under ss. 302 and 307 both read  with s.  34 I.P.C. and confirmed the sentences of imprisonment for  life for  each of the two counts of murder of  Prakash   Chandra  and   Umesh  Chandra   and   rigorous imprisonment for  four years  for attempt  to murder  Dinesh Chandra (P.W.  11) to  run concurrently  and set  aside  the conviction of  the appellant  Ram Karan under s. 147 and the other two appellants under s. 148 I.P.C.      The first  appellant Ram  Karan is  the father of other appellants Sunil  Kumar and  Ved Prakash  and also  of  Anil Kumar and  Satish Kumar, who have been acquitted by the High Court as  well as  of  deceased  Chhotey  Lal.  The  learned Sessions Judge  who tried  the case  convicted Ram Karan and all his  four sons, Sunil Kumar, Anil Kumar, Ved Prakash and Satish Kumar  under s.  302 read  with s.  149  I.P.C.  (two counts) and  s. 307  read with  s. 149  I.P.C. and sentenced them to  undergo imprisonment  for life  on each  of the two counts  under  s.  302  read  with  s.  149  I.P.C.  and  to imprisonment for  four years  under s.  307 read with s. 149 I.P.C. He convicted Ram Karan under s. 147 and his aforesaid four sons  under s.  148 I.P.C.  and sentenced  Ram Karan to undergo rigorous imprisonment 401 for one  year and  his sons to undergo rigorous imprisonment for two years under s. 147 and s. 148 I.P.C. respectively.      The case  of the  prosecution was  this:- The  deceased Prakash Chandra was the father of the deceased Umesh Chandra and the  injured witness Dinesh Chandra (P.W. 11) as well as

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of Gyan  Chand (P.W.  1). Prakash  Chandra and his sons were living in  Seohara town,  Bijnor district. The appellant Ram Karan and  his five  sons including the deceased Chhotey Lal were living  in another  house  in  the  same  town  as  the neighbours of  Prakash Chandra and his sons. Prakash Chandra and his  sons built  a new  house on  a  vacant  land  which existed between  these two houses about three years prior to the occurrence  in this  case which has taken place at about 1.00 p.m.  on 6.9.1970.  The appellant  Ram Karan  and  five others filed  Civil Suit  No. 34 of 1967 in the court of the Munsif, Nagina  against Prakash Chandra and his brother Gopi Chandra  and   one  Krishna   Devi,  alleging   that   while constructing the  new house  Prakash Chandra  had encroached upon a  portion of  their land.  In that suit, Ram Karan got Commissioners  appointed   by  the  court  on  five  or  six occasions for taking measurements of the properties with the object of  proving  his  case  of  encroachment  by  Prakash Chandra. But  those Commissioners’ reports were set aside on the objection  raised  by  Prakash  Chandra  and  the  other defendents. The  last Advocate Commissioner Mr. Mathur (C.W. 1) visited  the spot  on 6.9.1970,  accompanied by Mr. Zafar Hussain (C.W.  2)  who  appeared  for  Prakash  Chandra  and another and  Mr. Mahesh  Chand (C.W. 3) who appeared for Ram Karan. After  the completion  of the  survey work  at  about 12.30 p.m.  all the  three lawyers were standing and talking in front  of Ram  Karan’s baithak  at about  1.00 p.m.  Then Prakash Chandra  and Umesh  Chandra came  there to talk with the Commissioner.  Ram Karan,  who was  present there  along with his  five sons,  did  not  like  that  interference  of Prakash Chandra  and Umesh Chandra with the Commissioner. He stated that  he has spent thousands of rupees for taking out the commissions  and that  the reports  of the Commissioners were set  aside on  the objection  of  Prakash  Chandra.  So saying, he  instigated his  sons to kill Prakash Chandra and his sons.  Thereupon, Chhotey  Lal and  Ved Prakash attacked Prakash Chandra  with knives  while Sunil  Kumar, Anil Kumar and Satish  attacked Umesh  Chandra with  knives. On  seeing Dinesh Chandra  (P.W. 11)  who  rushed  meanwhile  from  the eastern side  to help  his father  and  brother,  Ram  Karan instigated his sons to attack him and caught hold of him by 402 his waist,  and all his five sons attacked him and inflicted injuries. Then P.W. 11 took out a knife from his pent pocket and wielded  it against  Ram Karan  and Chhotey Lal in self- defence  and  they  sustained  injuries.  P.W.  11  received injuries and  fell down.  Gyan Chandra  (P.W.  1),  who  was seeing the  occurrence, ran  to his  house along  with  some others and  bolted the door when Sunil Kumar, Anil Kumar and Satish chased  him for  attacking him. Abdul Wahid, P.W. 10, and others  who were  witnessing the  occurrence  raised  an alarm, and Ram Karan and his sons ran away.      Gyan Chand,  (P.W. 1)  came out  of his  house sometime later and found his father Prakash Chandra and brother Umesh Chandra  dead  and  Dinesh  Chandra  (P.W.  11)  lying  with injuries. He prepared the report, Ex. Ka. 3 and proceeded in a jeep with his brother Dinesh Chandra (P.W. 11), to Seohara Police Station  situate about  half a  mile away  and handed over that  report at  1.30 p.m. Dinesh Chandra (P.W. 11) was taken to  Dhampur hospital after he was given first aid by a Doctor on  the way.  He was examined at the Dhampur hospital by Dr.  Bagchi, P.W.  3 who  found on his person an abrasion and nine  incised wounds  of which injury No. 7 on the right side of  the chest  through which  blood and air were coming out was serious and the rest were simple.      The dead  bodies of  Prakash Chandra  and Umesh Chandra

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which were  found lying  in front of their house where blood also was  found, were  later sent for autopsy. Ram Karan and Chhotey Lal  went to  the Government  hospital, Bijnor where they were  examined by Dr. Sarin (P.W. 2) at 4 p.m. and 4.15 p.m. respectively  on 6.9.1970.  P.W. 2  found one punctured wound and  four incised  wounds on  Chhotey  Lal  and  three incised wounds  on Ram  Karan. The  injuries on both of them were fresh  and those  on Ram Karan were simple while injury No. 1  on Chhotey  Lal, namely,  a punctured wound which was lung-deep and  anterior to the left nipple, was grievous and the rest  were simple.  The injuries  on both  could, in the opinion of  P.W. 2, have been caused by knife. P.W. 2 issued the wound  certificates Ex.  Ka. 12  and Ka. 13. Ram Karan’s report was  lodged at  the Police  Station at  10.30 p.m. on 6.9.1970. Chhotey  Lal died in the District hospital, Bijnor on 10.9.1970.      Dr. Zuber  conducted autopsy  on the  bodies of Prakash Chandra  and  Umesh  Chandra  on  7.9.1970  and  found  nine antemortem, injuries,  of which  six were incised wounds, on the body  of Prakash  Chandra  and  six  antemortem  incised wounds on the body 403 of Umesh  Chandra and  he opined  that the  death of both of them was  due to  shock and  haemorrhage resulting  from the incised injuries.  Ex. Ka.  1 and  Ka. 2  are the postmortem certificates relating  to Prakash  Chandra and Umesh Chandra issued by  Dr. Zuber  who was  examined as  P.W.  1  in  the Committing Magistrate’s Court (Ex. Ka. 37). Dr. Dua (C.W. 4) conducted autopsy  on the  body of  Chhotey Lal on 11.9.1970 and found  an abrasion  and five  incised wounds  which were sufficient in the ordinary course of nature to cause death.      The prosecution’s  case rests mainly on the evidence of Gyan Chand  (P.W. 1),  Abdul  Wahid  (P.W.  10)  and  Dinesh Chandra (P.W.  11). As  stated earlier P.Ws 1 and 11 are the sons of  deceased Prakash  Chandra and brothers of the other deceased Umesh Chandra. P.W. 11 had received injuries during the occurrence  and P.W. 1 is the witness who had lodged the First Information  Report (Ex.  K. 3)  in the Seohara Police Station at  the earliest opportunity at 1.30 p.m. soon after the occurrence  which had  taken place  at about  1.00  p.m. These three  witnesses were  put forward as eyewitnesses and they have deposed in support of the case of the prosecution.      The accused  put forward  their version  of  the  case. According to  the accused,  after the  Commissioner (C.W. 1) finished his work and went to the house of the appellant Ram Karan, Prakash Chandra and his sons Umesh Chandra and Dinesh Chandra (P.W.  11) came  to the  baithak of  Ram  Karan  and attacked Ram  Karan and deceased Chhotey Lal with knives and thereupon they grappled with those three persons and wrested the knives  from them and attacked them in self-defence. The accused examined  D.W. 1 on their behalf. The court examined the Commissioner and the counsel of the parties in the civil suit as  C. Ws.  1 to 3 and the Doctor who conducted autopsy on the body of Chhotey Lal as C.W. 4.      The evidence  of C.W.  1 is  that  after  he  completed taking measurements  he went  along with Ram Karan’s counsel Mr. Mahesh  Chandra (C.W.  3) to  the baithak of Ram Karan’s house, that  both of  them came  out of  the house  8 or  10 minutes later,  that when  he advanced  from the door of the baithak he saw a person lying injured on the pavement of the road and another injured person standing there, that a third person came  and struck the injured person who was standing, and that  he and  C.W. 3  left  the  place  thereafter.  The evidence of C.W. 3 is that he and C.W. 1 who had gone to the baithak of Ram Karan’s house after C.W. 1 had

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404 taken the  measurements, came  out of  the baithak  5  or  7 minutes later,  and saw  Chhotey Lal  grappling with a young man, that  in the  course of grappling Chhotey Lal fell down bleeding, that  Chhotey Lal  managed to  get up and snatched the weapon  of the  assailant and  struck him  with it, that Prakash Chandra  came to  the rescue  of the  young man  and Chhotey Lal  struck him  with the  same weapon  and both the young-man and  Prakash Chandra  fell  down  after  receiving injuries from  Chhotey Lal,  and  that  on  account  of  the incident he  went away  along with  C.W. 1. C.W. 3 has added that soon  after he  went and  sat in  the  baithak  of  Ram Karan’s  house,   Zafar  Hussain  (C.W.  2)  came  and  said something to C.W. 1 from beyond the door of the baithak. The evidence  of   Zafar  Hussain   (C.W.  2)   is  that   after measurements had  been taken  C. Ws.  1 and  3 went  to  the baithak of Ram Karan’s house while he sat in the verandah of the old  haveli of  Prakash Chandra,  that  he  and  Prakash Chandra’s son,  who is now no more, thereafter went near the Commissioner (C.W  1) and  he told  C.W. 1  that he may hear what Prakash  Chandra wanted to say, that after saying so he got back  for meeting  another person  while Prakash Chandra and his son remained there, that after reaching the verandah of Prakash  Chandra he  went away  with Mehboob  Ali who was waiting for  him to  Mehboob Ali’s house and that no quarrel took place  when he  was present  there though  when he  was returning to  the verandah  of Prakash  Chandra’s  house  he heard some hot words being exchanged near the baithak of Ram Karan’s house.      The learned Sessions Judge has observed in his judgment that  the  evidence  of  C.Ws.  1  to  3  is  contradictory, unnatural and  not truthful.  He found  that P.W. 1’s report (Ka. 3)  was lodged  in the Police Station at 1.30 p.m. soon after the  occurrence had taken place at about 1.00 p.m. and that there  has been  no attempt at concoction in this case. He rejected  the contention  that Abdul Wahid, (P.W. 10) had any reason  to depose  falsely  against  the  appellant  Ved Prakash and  found his  evidence to be reliable. He observed that though  Prakash Chandra had been working as an Engineer in a  sugar mill  at Seohara and P.W. 10 was employed in the engineering department,  P.W. 10  was actually working under one Bachcha  Lal and  is an  independent witness. P.W. 1 has stated in  his evidence  that Prakash Chandra, Umesh Chandra and Ram  Karan did  not have  any weapon  at the time of the occurrence. The  evidence of  the injured witness P.W. 11 is that when  he returned  home from  Moradabad at  about 12.30 p.m. on the day of occurrence 405 he saw  his father Prakash Chandra and brother Umesh Chandra lying in  a pool  of blood  and that on seeing him Ram Karan shouted that he also should be killed and caught hold of him by his  waist and  that he  was attacked  with knives by the accused persons  including Ram Karan and he wielded in self- defence the knife which he had purchased on that day for his work.      The learned  Sessions Judge  accepted the  evidence  of P.Ws. 1,  10 and 11 and commented upon Ram Karan and Chhotey Lal going  to the hospital at Bijnor without arranging for a report being  given at the Police Station at Seohara in time and held  that the  accused were  the  aggressors  and  that Dinesh Chandra  (P.W. 11)  caused injuries  to Ram Karan and the deceased  Chhotey Lal  in the  exercise of  the right of private defence. Accordingly he found the accused guilty and convicted them and sentenced them as mentioned above.      The High  Court also  rejected the  defence theory that

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Chhotey Lal  was attacked by three persons armed with knife, chura and khukhri having regard to the fact that he had only one lung deep punctured wound and the other four wounds were only skin deep and of very minor dimensions.      The learned  Judges of  the High  Court found  that the name of Anil Kumar is not mentioned in the First Information Report (Ex.  Ka. 3)  but instead the name of one Virendra is mentioned and  that it  appears from  the evidence of P.W. 1 that Virendra is the name of Prakash Chandra’s brother. They found that  in the  statement of  P.W. 11  recorded as dying declaration, Sushil  Kumar is  mentioned instead  of  Satish Kumar. In  these circumstances the learned Judges found that there is reasonable doubt regarding the participation of the accused Anil  Kumar and  Satish  Kumar  and  they  gave  the benefit of  that doubt  to those  two appellants before them and acquitted  them. In  other respects,  the learned Judges accepted the  evidence of  P.Ws. 1,  10 and 11 regarding the occurrence and  rejected the  defence version  and held  the appellants guilty under s. 302 read with s. 34 in respect of the murder of Prakash Chandra and Umesh Chandra and under s. 307 read  with s. 34 in respect of Dinesh Chandra, (P.W. 11) and convicted them accordingly and sentenced them to undergo imprisonment for  life under  s. 302  read with s. 34 I.P.C. and rigorous  imprisonment for  four years under s. 307 read with s. 34 I.P.C. 406      We perused the records and the judgments of the learned Sessions Judge  and of  the learned Judges of the High Court and heard  the arguments  of Mr. R.L. Kohli, Senior Advocate who appeared  for the  appellants and  of Mr.  D.P.  Uniyal, Senior Advocate  who appeared  for the  respondent-State  of U.P. We  were taken  through the evidence of P.Ws. 1, 10 and 11. The  learned Sessions Judge has observed in his judgment that the  evidence of  the three  lawyers C.Ws.  1 to  3  is contradictory, unnatural  and not  truthful and that if they had given  honest evidence it would have been easier for the court  to  conclude  which  side  was  the  aggressor.  This observation of  the learned Sessions Judge appears to be too sweeping and  not correct  at least with reference to C.W. 2 who has  professed ignorance  about the actual occurrence in the case  and has  stated that  he left  after asking C.W. 1 from outside  the baithak  of Ram Karan’s house to hear what Prakash Chandra  who had  gone with him and his deceased son wanted to  tell him  because another person Mehboob Ali with whom he  later went  to his house was waiting for him in the verandah of  Prakash Chandra’s house. The evidence of C.W. 2 that no  quarrel took place when he was present there though when he  was returning  to the verandah of Prakash Chandra’s house he  heard some  hot words  being  exchanged  near  the baithak of  Ram Karan’s house, is, in a way, corroborated by the evidence of P.W. 1. P.W. 1 has stated that when exchange of hot  words started  the Commissioner  and Vakils  of  the parties moved  from there to the road and that just when Ram Karan’s Vakil  had gone  a short  distance from  Ram Karan’s house, Ram  Karan and  others stated that "they have got our thousands of  rupees spent  over litigation.  We have become tired of getting commissions issued. Kill them today so that the trouble may be ended for ever. At that time all the five sons of  Ram Karan,  Chhotey Lal, Ved Prakash, Satish Kumar, Sunil Kumar  and Anil Kumar were present, and when Ram Karan said so  all  five  sons  whipped  out  knives  and  started assulting.....". This  portion of  the evidence of P.W. 1 is to the effect that the lawyers C.Ws. 1-3 were not present at the time  of the  actual assault  on  the  deceased  Prakash Chandra and Umesh Chandra as a well as on P.W. 11. Even P.W.

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10 has  stated in  his evidence  that "when  he reached near dharmshala at  about 12.45  p.m. he  heard the shouts of Ram Karan from his house situate at a distance of 30 paces, that when he  reached the end of the road he was in a position to see the  house of  Ram Karan,  that on hearing the shouts he proceeded towards  the place  from where they came and stood near 407 the wall  and found  three Vakils  present and  also Prakash Chandra and  Umesh Chandra,  that as  soon as he reached the place, the Vakils left the place, that Ram Karan then stated that he  got the  Commissioner appointed  5 or  6 times  and spent several  thousands of  rupees and  he should be killed and that when Ram Karan said so his sons Chhotey Lal and Ved Prakash began  to attack  Prakash Chandra  with knives, that Sunil Kumar  and Ram  Karan’s other  sons began  to  assault Umesh Chandra  with knives,  that during  the marpit Prakash Chandra  and   Umesh  Chandra   fell  down  after  receiving injuries, that  thereafter Dinesh  Chandra, son  of  Prakash Chandra came  from the  eastern direction, and on seeing him Ram Karan  shouted that he should also be done to death, and he caught  hold of Dinesh Chandra by his waist, and that all the four  boys and  deceased Chhotey  Lal began  to  assault Dinesh Chandra  with knives,  and Dinesh Chandra wielded his knife in  self-defence and  caused injuries to Ram Karan and Chhotey  Lal   and   thereafter   fell   down   and   became unconscious....". This  portion of  the evidence  of P.W. 10 also shows  that C.Ws.  1 to  3 left  the place  soon  after exchange  of   hot  words   began  between  the  two  sides. Therefore, I  am of  the opinion  that there is no reason to reject the  evidence of  C.W. 2  that no  quarrel took place when he  was present  near about the scene of occurrence. In the circumstances  of the  case, it  is very  probable  that before serious  trouble started  from the  exchange  of  hot words, C.Ws.  1 to  3. the  Commissioner and the counsel for both the  parties in the civil suit, left the place and were not present  at the  time of the actual occurrence as stated by P.Ws. 1 and 10.      Mr. R.L.  Kohli drew  our attention to some portions of the judgment  of the  learned Judges  of the  High Court and submitted that  the observation  of the  learned Judges that from the  side of  the defence  it was  not suggested to any witness that  Abdul Wahid  (P.W. 10) was a different man and that he has been introduced because the real Abdul Wahid was not prepared  to support  the prosecution case is incorrect. The learned  counsel further  submitted that the observation of the  learned Judges that the presence of Gyan Chand (P.W. 1) at  the time  of the  occurrence does  not appear to have been challenged  by the  defence is  also not  correct. This criticism of  the learned counsel for the appellants appears to be  well-founded, for  I find  that a suggestion has been made to  P.W. 10  in cross-examination  and he  has admitted that there is also 408 another person  named Wahid  son  of  Abdul  Rehman  in  his mohalla and  that that  person was  an accused  in a rioting case. And  in the  cross-examination of  P.W. 1  it has been clearly suggested  that he  was not  present at the spot and that he  prepared the  report Ex. Ka. 3 afterwards with some consultation. P.W. 1 has no doubt denied that suggestion and stated that  he was  present at the spot and that he himself wrote the  report Ex.  Ka. 3 before he came out of the house by opening the door. The learned Judges have stated in their judgment that  after Ram  Karan stated  that  he  has  spent thousands of rupees on commissions and every time the report

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of the  Commissioner was  set  aside  on  the  objection  of Prakash Chandra  and he  instigated his sons to kill Prakash Chandra and  Umesh Chandra,  all the  five sons of Ram Karan started giving  knife blows  to Prakash  Chandra  and  Umesh Chandra and  both of  them fell  down. This  portion of  the judgment of the learned Judges is to the effect that all the five sons  of Ram  Karan including  the deceased Chhotey Lal attacked the  deceased Prakash  Chandra  and  Umesh  Chandra whereas it  is the case of the prosecution as brought out in the evidence  of P.W.  1 that after Ram Karan instigated his sons to  open the  attack only  Chhotey Lal  and Ved Prakash attacked Prakash  Chandra with  knives and only Sunil Kumar. Anil Kumar  and Satish  Kumar attacked  Umesh  Chandra  with knives. It is unfortunate that these inaccuracies have crept into the  judgment of  the learned Judges of the High Court. But on  an overall  consideration of  the entire material on record and  the evidence  in the  case in  the light  of the arguments of the learned counsel for the parties I am of the opinion that the appreciation of the evidence of P.Ws. 1, 10 and 11  by the learned Sessions Judge and the learned Judges of the  High Court  in so  far as the appellants Sunil Kumar and Ved  Prakash are  concerned  is  correct  and  that  the evidence of  P.Ws. 1  and 10  proves beyond reasonable doubt that these  two  appellants  Sunil  Kumar  and  Ved  Prakash attacked the deceased Prakash Chandra and Umesh Chandra with knives as a result of which both of them, who had no weapons died on the spot, and the evidence of P.Ws. 10 and 11 proves satisfactorily and  beyond any  reasonable doubt  that these two appellants  attacked  P.W.  11  with  knives  with  such intention that  if he  had died  as a result of the injuries sustained  by   him  they  would  be  guilty  of  murder  in furtherance of  their common  intention to  murder. The dead bodies of  Prakash Chandra  and Umesh Chandra and blood were found in front of the house of both the 409 deceased and  P.W. 11.  Both the deceased had no weapons and they had  been attacked before P.W. 11 arrived and wield his knife against Ram Karan and Chhotey Lal. The main occurrence had taken  place in  front of the house of both the deceased and P.W.  11. Before  the trial  court it  was not submitted that the  attack by the accused persons on both the deceased Prakash Chandra  and Umesh  Chandra and  P.W. 11 was without any pre-meditation  in a sudden fight in the heat of passion upon a sudden quarrel. Nor is it a case in which it could be said that the offenders had not taken undue advantage or had not acted in a cruel or unusual manner. No such argument was put forward  even before  the High  Court to  bring the main occurrence under  s. 304  (Part I) I.P.C. Since I have found that the occurrence has taken place in front of the house of the two  deceased and  P.W. 11  in this  case and  that  the accused persons  were the aggressors neither Exception 2 nor Exception 4  to s.  300 I.P.C.  would apply  to the facts of this case  and the  offence cannot  be brought  under s. 304 (Part I)  I.P.C. In  these circumstances,  I agree  with the learned Sessions  Judge that  the appellants Sunil Kumar and Ved Prakash were the aggressors and find that they have been rightly convicted  under s.  302 read  with s. 34 I.P.C. for the offence  of murder of those two persons and under s. 307 read with  s. 34  I.P.C. with reference to P.W. 11. But I am of the  opinion, having  regard to  the age of appellant Ram Karan, who  was about  70 years  old  at  the  time  of  the occurrence that there is a reasonable doubt as to whether he would have caught hold of the young man Dinesh Chandra (P.W. 11) by  his waist  and whether  he would  have asked all his sons to  attack and  kill Prakash  Chandra and  his  son.  I

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therefore, give  the benefit of this reasonable doubt to the appellant Ram  Karan and  set aside  his conviction under s. 302 read  with s.34  (two counts) and under s. 307 read with s. 34  and acquit  him and  direct him  to be set at liberty forthwith if  he is  in custody  and  his  presence  is  not required  in  connection  with  any  other  case.  In  other respects I  dismiss the  criminal  appeal  and  confirm  the conviction of  Sunil Kumar and Ved Prakash and the sentences awarded to them.      In accordance  with the  opinion of  the majority,  the appeal is  allowed to  the extent that the conviction of Ram Karan under s. 302 read with s. 34 (two counts) and under s. 307 read  with s.  34 of  the Indian Penal Code is set aside and he  is acquitted and that convictions of the appellants, Sunil Kumar and Ved Prakash, are 410 altered from  one under  s. 302/34,  I.P.C. to that under s. 304(1)/34,  IPC   and  they   are  sentenced   to   rigorous imprisonment for seven years. Conviction and sentences under section 307/34,  I.P.C. are maintained and sentences awarded have already been directed to run concurrently. S.R.                                  Appeal partly allowed. 411