Sufeda etc. Vs State of Hy.

The present appeal has been filed against the judgment of conviction and order of sentence dated 12.08.2003 passed by the Additional Sessions Judge, Fast Track Court, Gurgaon.

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The instant FIR came to be registered on 08.10.1999. The accused-appellants came to be convicted vide judgment of conviction and order of sentence dated 12/16.08.2003. The present appeal against the judgment of conviction and order of sentence was filed on 06.01.2004. The matter has come up for final hearing now after almost 26 years of the registration of the FIR.

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Briefly stated the case of the prosecution as set out on the SUKHPREET KAUR statement of the complainant-Nasru is that on 07.10.1999 at about 7:00 PM. 2025.05.13 21:24 I attest to the accuracy and integrity of this document chandigarh

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Salma daughter of Nasru was present in the field to keep a watch on the crop of Bajra whereas Nasru, her father, had gone to the Masjid to offer Namaz. On return of the complainant, Salma told him (complainant) that Yakub son of Sufeda had come there and had made some obscene jokes on her. Yakub had told Salma that she was to lose nothing if she was of some use to him. Then, Nasru as per his statement before the police took his grand father Dhotali to lodge a protest at the house of Yakub but Yakub was called at the ' thari ' of the village chowk. Dhotali and protested to him as to why he had made obscene jokes upon Salma. Yakub got annoyed and spoke loudly. Then Akhtar armed with a farsa and others viz. Fajru, Sufeda, Sukarbi, Asmina and Farida armed with lathis and stones came there in prosecution of the common object of all to commit offences. Akhtar gave a farsa blow on the head of Dhotali and Yakub gave a lathi blow on the wrist of the right hand of Dhotali. Fajru gave a lathi blow on his right hand palm. Sufeda gave a lathi blow on the elbow of his left hand. Sukarbi gave a stone (rora) blow on the wrist of his left hand. Asmina struck him by throwing a brick on the knee of his left leg. Farida also threw a stone (rora) on the wrist of his right hand. Fajru gave another lathi blow on the palm of his right hand. He (Fajru) also gave a lathi blow on the wrist of his left arm. Yakub gave a lathi blow on the thumb of the right hand of Issa. Moosa and Issa had come to the spot as soon as the occurrence took place to save the complainant party. But they received injuries, too. Akhtar gave a farsa blow from the reverse SUKHPREET KAUR2025.05.13 21:24 side just above the left eye of Moossa and another farsa blow on the I attest to the accuracy and integrity of this document chandigarh

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lower side of the left eye of Moosa. A third blow was given on the left arm of Moosa. Yakub too gave a lathi blow on the right arm of Moosa. On the basis of the statement of Nasru, the FIR was registered.

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The injured were taken to hospital and were got medico-legally examined. Dhotali injured was taken to General Hospital, Gurgaon, and then to Safdarjang Hospital, where he died on 10.10.1999. Head constable Fajruddin went to the spot and prepared the rough site plan and recorded the statements of the witnesses. After this, the investigation was taken up by ASI Ishwar Singh. On 10.10.1999 Fajru and Sufeda were arrested from a jungle near the abadi of village Nasirbas. Akhtar was also arrested there. These accused persons were brought to the police station and they were interrogated by ASI Ishwar Singh. Akhtar made a disclosure statement regarding the farsa kept concealed by him in his residential chappar. After this, Sufeda made a disclosure statement regarding lathi used by him and kept concealed in his residential house. Fajru too disclosed regarding lathi kept concealed in his house. Their disclosure statements were recorded on 11.10.1999. ASI Siri Niwas after coming to know that Dhotali had died, prepared inquest papers. He also got the post-mortem examination conducted on the dead body of Dhotali from the doctors. DSP Om Parkash who was working as District Inspector, Gurgaon, on 13.10.1999 received the investigation and interrogated Sufeda, Akhtar and Fajru accused. After recording their disclosure statements necessary recoveries qua weapons of SUKHPREET KAUR2025.05.13 21:24 offence were effected. All the weapons were duly sealed. Naveen Kumar I attest to the accuracy and integrity of this document chandigarh

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District Inspector on 08.11.1999 arrested Yakub and recovered from him a lathi , which was taken into possession by preparing a memo. Scaled site plan was got prepared from Naresh Kumar, Draftsman. Report of FSL was obtained. After completion of necessary investigation and other usual formalities, the challan was prepared and the same was then presented before the Court for trial of the accused, as per law.

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On the basis of police report under Section 173 Cr.P.C. and other documents on record all the accused were charge-sheeted under Sections 148, 323/149, 324/149, 325/149, 307/149 and 302/149 of IPC. Accused Yakub was also charge-sheeted under Section 294 IPC. The accused pleaded not guilty to the charges and claimed trial.

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In order to substantiate its allegations, the prosecution examined 17 witnesses in the case.

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Dr. Sarayu Sharma/PW-1 stated that on the application of ASI Ishwar Singh Ex. PA, he reported that the patient has been referred to Safdarjang Hospital, Delhi, for further management and treatment. He proved his Report Ex.PA/1. Similarly, on another application Ex.PB the doctor made report Ex.PB/1 that the patient has been referred to Safdarjang Hospital, Delhi. Constable Naresh Kumar, PW-2 prepared the scaled site plan Ex.PC. SI Babu Lal PW-3 prepared the challan and submitted the same before the court for trial of the accused. HC Vijay Pal PW-4 tendered into evidence his affidavit Ex.PD. Constable Pardeep Kumar PW-5 tendered into

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SUKHPREET KAUR2025.05.13 21:24 evidence his affidavit Ex. PE. Inspector Naveen Kumar PW-8 arrested I attest to the accuracy and integrity of this document chandigarh

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Yakub accused and took into possession lathi vide memo Ex.PT. ASI Siri Niwas PW-9 prepared the inquest papers Ex.PU after the death of Dhotali on 11.10.1999. Constable Raja Ram PW-14 brought the Daily Diary of Sarojani Nagar and proved the same.

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Dr. Jai Narain PW6 medico-legally examined Dhotali on 07.10.1999 and reported the following injuries on his person:-

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1. An incised wound size of 5 cm in length avulsed/superficial skin/slashing of the skin, the left margin which was continuous with the skin on the left side and below the slashed skin. There was a wound which was bone deep. Colour was reddish. Bleeding was present. There was swelling on the left side which was extending towards the left eye brow and there was blackening of the left upper eyelid. X-ray was advised for skull AP Lateral.

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2. A lacerated wound size 2 cm x 1cm over posterior aspect of right fore-arm almost in the middle. Bleeding was present. Colour was reddish. No foreign body was seen inside the wound. X-Ray was advised for right fore-arm.

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He proved the copy of MLR Ex.PF as well as rukka Ex.PG.

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Dr. Jai Narain PW-6 also medico-legally examined Nasru on

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the same day and reported the following injuries on his person:-

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1. Lacerated wound size of 1 cm over the posterior aspect and at the base of the right little finger. Bleeding was present. Colour was reddish. Movement were restricted.

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2. A bruise reddish over posterior medial aspect of right hand 4 x 2 cm. Movement were restricted.

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3. A bruise reddish over the middle knuckle of right little finger 1 x 1 cm. X-Ray was advised for injury No. 1 to 3 right hand.

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4. A reddish bruise over lateral aspect and upper part and elbow region of left fore-arm size of 5 x 5 cm. Restricted movements were there. X-Ray was advised for left elbow and upper part of left fore-arm.

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5. A bruise reddish size of 5 x 3 cm over the lower part of left thigh.

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6. A reddish bruise over posterior aspect of right fore-arm in the middle 6 x 3 cms.

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7. A reddish bruise 3 x 2 cm over the middle and posterior aspect of left fore-arm.

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He proved copy of MLR Ex.PG. This doctor also medicolegally examined Moosa on the same day and reported the following injuries on his person:-

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1. A lacerated wound size of 2 x .5 cm just above the left eye brow. Colour was reddish. No foreign body was seen. There was swelling around it. Bleeding was present.

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2. A reddish bluish bruise over left maxillary region and lower eyelid.

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Advised X-Ray skull.

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3. A reddish bruise 5 x 3 cm over lateral part of left arm in the middle.

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4. A reddish bruise 5 x 2 cm over the upper part of right arm. He proved carbon copy of MLR Ex.PH.

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The doctor further medico-legally examined Issa on the same

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day and reported the following injuries-

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1. A lacerated wound size of 2.5 x .2 cm over the dorsal aspect of right thumb. Colour was reddish. Bleeding was present. Copy of MLR Ex.PJ was proved.

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After getting X-Ray of Nasru injured, this doctor gave his report Ex. PN, which is as under:-

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"X-Ray right hand there was fracture of right 5th Meta carpal bone and right proximal phalyns of right little finger was seen." No bone injury was seen on the X-Ray of elbow. The doctor reported that the injuries Nos.1 and 2 qua Nasru were grievous, but not dangerous to life.

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SI/SHO Ram Niwas PW-7 stated that on 10.10.1999, Moosa came to the Police Station and gave a statement that the injured Dhotali had expired in Safdarjang Hospital, Delhi due to the injuries sustained in the occurrence. He proved the statement Ex.PS of Moosa. Section 302 of Indian Penal Code was added and the special reports to the concerned officers as well as to Illaqa Magistrate were sent.

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Dr. Arvind, CMO, Safdarjang Hospital, New Delhi was examined as PW-11. He conducted the post-mortem examination on the dead body of Dhotali and reported the following injuries-

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General Observation:

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The body was dressed in hospital sheet. No clothes were present at the body. Rigor mortis was present all over the body. Postmortem staining was present on back. Eyes were closed. Ear, nose and mouth were normal. No weapon of offence was produced at the time of post-mortem examination.

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External Examination Injuries:

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1. Incised wound 5x 2 cm into bone deep, stitched, got loosed, vertically placed on frontal and parietal region of the skull. It was located 9cm above the root of nose and 10cm above the medial to right pinna and 1cm left to skull mid line, both the ends of the wound were tampering.

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2. Abrassion 2 x 1 cm located 2 cm behind the injury No.1.

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3. Incised wound on outer aspect of middle of right fore-arm. Size was 2 x .5 cm into bone deep.

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4. Contusion on left temporo parietal region 6 x 4 cm size, defused in nature.

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Internal Examination: Scalp, skull, brain

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Effusion of blood seen in frontal parietal and temporal region and left temporal muscle. The skull showed cut fracture of left fronto parietal bone underneath. Injury No.I and fissured fracture of parietal frontal and temporal bones on left side, parietal bone of the right side, Also depressed, elevated, communitted fracture of left temporo parietal bone on left side seen tending to left middle cranial fossa. The brain showed left side extra dural haemorrhage and thing sub dural haemorrhage on both side of cerebral hemisphere. Contusion was present on both frontal parietal and left temporal lopes. The brain was soft, swollen and oaedematous weighed 1500 grams.

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Neck and Thorx - trachea/neck structure were intact. Chest wall showed fracture of left side third rib. Lungs were intact. Heart and corobaries were normal.

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Abdomen & Pulvis

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Stomach was empty and all viscera were normal. The blood swab was preserved sealed and handed over to the I.O. for FSL examination.

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According to the doctor all the injuries were ante-mortem in nature and cause of death was due to cranio cerebral damage consequent upon injury No.1 caused by sharp weapon like farsa and injury No.4 caused by blunt weapon like lathi. He further opined that injury Nos. 1 and 4 were individually and collectively sufficient to cause death in ordinary course of nature. He proved Post-mortem Report Ex PAA. Inquest papers Ex. PU (12 sheets) were also proved by initialled by him.

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The complainant-Nasru/PW-12 stated that on 07.10.1999 at about 7.00 PM, he asked his daughter-Salma to keep a watch on the crop of Bajra and went to offer Namaz to a Masjid. When he returned back at about 7.10.PM, his daughter told him that Yakub son of Sufeda had passed obscene comments on her. Thereafter, he took his grand-father/Dhotali and was going to the house of Yakub. When he came across Yakub at the back of Panchayat ghar, Dhotali protested to Yakub regarding his comments on Salma. Yakub got annoyed at this. Hearing Yakub speaking loudly, Fajru, Akhtar, Farida, Sufeda, Sukarbi and Asmina came there. Akhtar was armed with a farsa while others were armed with lathis and stones. On reaching the spot, Akhtar gave a farsa blow on Dhotali. On hearing the commotion, Moosa and Issa his brothers came to the spot. Yakub gave a lathi blow on the right hand of Dhotali. Fajru gave a lathi blow on his right hand which fell on his fingers. Sufeda gave a lathi blow on his right elbow. Sukarbi gave a blow with brick bat on his left hand, Asmina gave a brick bat blow on his left knee. Farida gave a stone blow on his right elbow. Fajru gave a l athi

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blow that fell on the palm of his right hand. Fajru gave another lat hi blow on his right wrist. They all assaulted Moosa and Issa as well who would disclose their injuries themselves. Hanif son of Shahbuddin, Umardin son of Chintila were watching the occurrence from nearby and came to their rescue. In cross-examination, he denied the suggestion that he alongwith Moosa, Issa, Kamru, hanif, Ahmad, Akhtar and Amin had attacked Yakub at his house and that the injuries were caused by the accused in their self-defence.

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PW-13/Moosa stated that on 07.10.1999 at about 7.00 PM, he heard loud voices at the back of the village chopal. He alongwith his brother Issa went there. He saw Yakub, Akhtar, Fajru, Sukarbi, Farida, Asmina and Sufeda. Akhtar was having a farsa. All others had lathis in their hands. Dhatoli and Nasru were also there. Akhtar gave a farsa blow on the head of Dhatoli , Yakub gave a blow of lathi on the hand of Dhatoli, Akhtar gave a farsa blow from the blunt side on his left eye. He gave another blow from the same side below his left eye. Akhtar gave a lathi blow on his left wrist. He then again said that he gave a farsa blow from the reverse side. Yakub gave a lathi blow on his left arm. Umardin son of Chntula and Hanif son of Shahbuddin came to the spot and rescued them. Yakub gave a lathi blow on Issa which fell on his right thumb of the hand. In cross-examination, he denied the suggestion that he alongwith Nasru, Dhatoli, Issa, Hanif, Akhtar, Kamru, Ahmad and Amin had attacked Yakub at his house and had caused injuries to Yakub, Akhtar, Sufeda and Fajru and that they (accused party) had caused injuries to them (complainant party) in their self-defence.

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PW-15/Salma daughter of Nasru stated that on 07.10.1999 when her father had gone away to the Masjid to offer Namaz leaving her in the fields, Yakub came there and passed certain obscene comments on her. When her father returned to the spot, she told him about the incident with Yakub.

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PW-16/Ishwar Singh ASI stated that on 08.10.1999, he first went to General Hospital, Gurgaon where he was told that Dhatoli had been referred to Safdarjang Hospital, New Delhi. On moving an application before the doctor concerned, the doctor opined that Dhatoli was unfit to give a statement. On moving another application, the doctor opined that the injury of Dhatoli was dangerous to life. He visted the bed of Dhatoli where on finding Moosa and Issa alongwith others, he recorded their statements under Section 161 Cr.P.C. On 08.10.1999, he recorded the statement of Salma under Section 161 Cr.P.C. On the basis of the said statement, Sections 294 and 307 IPC were added. He, thereafter, arrested the accused who suffered their disclosure statements. Meanwhile, a wireless message was received from Safdarjang hospital that Dhatoli had died. Thereafter, he handed over the investigation to Ram Niwas SI/SHO.

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PW-17/Om Parkash DSP, stated that on 13.10.1999, he received the file of this case. He reached Ferozepur Jhirka where he interrogated Sufeda, Akhtar and Fajru. On the basis of the disclosure statement of the said accused, Sufeda and Fajru got recovered lathis whereas Akhtar also got SUKHPREET KAUR2025.05.13 21:24 recovered a lathi only as he had stated in his disclosure statement that the I attest to the accuracy and integrity of this document chandigarh

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upper iron part of the spear on top of the lathi had been thrown by him in the well in front of the Mosque.

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The accused were examined under Section 313 Cr.P.C. The evidence was put to them. They denied the same and claimed false implication at the instance of Hanif and consequent party faction. They were also given opportunities to lead evidence in defence. The accused examined five witnesses in defence and closed their evidence.

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The gist of the defence witnesses is as under:-

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DW-1/Dr. Jai Narain, stated that that on 09.10.1999, he medico legally examined Sufeda son of Nasiba and Akhtar son of Sufeda and found the following injuries on their person:-

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Sufeda

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1. A bruise size of 13 cm x 3 cms obliquely situated over the right side of lower part of chest and abdomen just behind the post axillary line. Colour was bluish. On the upper of it there was brownish abrasion 1 cm diameter. Patient was complaining of pain. The injury was declared simple and was caused within a duration about 2 to 3 days and caused by blunt weapon. The photocopy of which is Ex.DC.

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Akhtar

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1. An abrasion size of 4cm x 2cms with scab formation, brownish in colour over the right frontal pareital region of the scalp.

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2. An abrasion size of 4 cm x 2 cms over right parietal region of the scalp with scab formation, brownish in colour.

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Both the injuries were simple and caused within a probabation duration 2 to 3 days and caused by blunt weapon. The photocopy of MLR is Ex.DD.

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DW-2/Rehmuddin stated that the occurrence took place because of some dispute between Hanif on the one side and Yakub on the other due to some business transaction and it was the complainant party which had opened attack on the accused persons.

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DW-3/Dr. S.S. Yadav stated that on 08.02.2000, he had referred patient-Sufeda son of Nasiba to Medical College, Rohtak for treatment because he was suffering from T.B. Yakub and Akhtar accused who were confined in District Jail, Gurgaon were also referred to Civil Hospital, Gurgaon as they were suffering from SOM.

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DW-4/EHC Naresh Kumar stated that he had brought the summoned record containing DDR No.35 dated 08.10.1999 which was recorded on the information of ASI Ishwar Singh. The copy of the DDR was Ex.DF. As per record, DDR No.28 dated 09.10.1999 was also recorded by Ishar Singh ASI. They copy of the same is Ex.DF/1. DDR No.5 dated 10.10.1999 was registered by SI/SHO Ram Niwas. The copy of the same is DF/2.

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DW-5/ HC Sube Singh stated that he had brought the summoned record of case FIR No.165 dated 08.10.1999 under Sections 148, 149, 323, 324 IPC, Police Station Ferozepur Jhirka. The FIR was registered SUKHPREET KAUR2025.05.13 21:24 by Nasru against Sufeda, Akhtar, Yhakub, Sukarbi, Aasmina, Fajru and I attest to the accuracy and integrity of this document chandigarh

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Farida. Some part of the FIR had been written in different ink but he could not disclose as to who had written which part.

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Based on the evidence led, the accused-appellants, namely, Sufeda, Akhtar, Fajru and Yakub came to be convicted and sentenced by the Court of the Additional Sessions Judge, Chandigarh, vide judgment of conviction and order of sentence dated 29/30.01.2004 as under:-

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Name the accu	of sed Offence under Section	Sentence	Fine	In default of payment of fine
Sufeda, Akhtar, Fajru Yakub	and 302/149 IPC	RI Life Imprisonment	Rs.2,000/ - each	RI 01 year each
	325/149 IPC	RI 03 years	Rs.5,00/- each	RI 03 months each
	324/149 IPC	RI 01 year each	--	--
	323/149 IPC	RI 06 months each	--	--
	148 IPC	RI 01year each	--	--
Yakub	294 IPC	RI 02 months

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All the sentences were ordered to run concurrently.

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The aforementioned judgment of conviction and order of sentence dated 12/16.08.2003 passed by the Additional Sessions Judge, Fast Track Court, Gurgaon, is under challenge before this Court.

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During the pendency of this appeal, the sentences of the accused-appellants, namely, Sufeda (since deceased), Akhtar, Fajru and Yakub were suspended by this Court vide orders dated 23.09.2004, 31.08.2006, 20.08.2007 and 23.11.2006 respectively.

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The learned Amicus Curiae for the appellants No.2 to 4 contends that the incident took place on the spur of the moment when the complainant party went to remonstrate with the accused side regarding the obscene talk of Yakub with Salma daughter of Nasru (complainant). An altercation took place and even as per the prosecution, the accused persons came one after the other only armed with lathis, other than Akhtar who was armed with a farsa (axe like weapon). Lathis and farsa cannot be said to be weapons as they are usually carried by villagers. Only one fatal injury was caused on the person of the deceased by Akhtar that too without pre-meditation in a sudden fight. A cross bearing DDR No.28 dated 09.10.1999 Ex.DF/I stands registered at the instance of Akhtar against the present complainant party. Three accused persons, namely, Sufeda, Akhtar and Yakub also received injuries in the occurrence which apparently is a free fight between the two parties. In a case of a free fight, the individual role of the accused is to be considered and if that be so, then the Akhtar would be liable under Section 304 for causing the fatal injury on the deceased, Yakub would be liable under Section 323 for causing simple injuries on the wrist of Dhatoli and a simple injury each on the right thumb and right arms of Issa and Moosa respectively. Fajru would be liable for having caused grievous injuries on the person of Nasru. He, thus, contends that the conviction and sentence be modified accordingly.

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The learned counsel for the State, on the other hand, contends

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SUKHPREET KAUR2025.05.13 21:24 that the deposition of the witnesses is clear and categoric as to the manner in I attest to the accuracy and integrity of this document chandigarh

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which the occurrence took place. The medical evidence is totally in consonance with the ocular account. All the accused came duly armed and caused fatal injuries to the deceased-Dhatoli and also caused injuries to Nasru, Issa and Moosa. Therefore, the conviction has been rightly recorded under Section 302 IPC, etc. Therefore, the present appeal is liable to be dismissed.

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We have heard the learned counsel for the parties.

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Before proceeding further, it would be apposite to examine some of the law on the issue at hand.

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The Hon’ble Supreme Court in “Kedar Prasad and others versus State of M.P. 1992 AIR Supreme Court 1629”, has held as under:-

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2. We have heard learned Counsel for the appellant. His main prayer is that since the appellants are on bail, we may reduce the sentence of the appellants to the period already undergone. There are three appellants in these two appeals. In the dying declaration of the deceased specific roles have been ased to the appellants. The deceased Alafat had been attracted by a commotion in the neighbourhood where a woman was being beaten. The deceased asked the assailants not to beat that woman. Then malice was transferred to the deceased and the accused persons exhorted to each other to divert their attention to the deceased. The first blow was given by Kedar Prasad appellant with his stick which struck on the head of the deceased and another blow was given by Ramlal appellant with his spear striking at his knee and yet another one on his hand and thereafter the deceased says that he was given blow by others. By process of exclusion 12 out of 15 accused originally arraigned have been acquitted by the courts below. Out of the remaining, two appellants, namely, Kedar Prasad and Ramlal have been convicted under Section 304, Part I, Indian Penal Code and sentenced to rigorous imprisonment for five years. All the three appellants however have been convicted under Section

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323 of the Penal Code and sentenced to one year's rigorous imprisonment.

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3. The dying declaration of the deceased, which was relied upon by the courts below, discloses that the deceased had positively mentioned Kedar Prasad and Ramlal to be the persons who first gave him blows one after the other and then by others who do not figure in these appeals except Ram Bali appellant. It is evident that Kedar Prasad appellant gave the head injury. According to Dr. C. L. Nigam, P.W. 12, who performed the postmortem examination of the deceased, the deceased had died on account of the severe head injury causing multiple fracture of the skull besides extradural haemorrhage which by itself was fatal. Since the fatal injury is attributed to Kedar Prasad, appellant it appeals to us that his conviction and sentence as recorded by the High Court should be sustained and we order accordingly. So far as Ramlal, appellant is concerned the injuries given by him with a spear on the knee and the arm of the deceased were simple. For these injuries Ramlal appellant cannot be convicted under Section 304, Part I, Indian Penal Code as Section 34 Indian Penal Code has not been applied after setting aside conviction under Section 147 Indian Penal Code His conviction has thus to be brought down to one under Section 324 Indian Penal Code and we order accordingly. There is nothing which can be said about the conviction of Rambali appellant who stands' convicted under Section 323 Indian Penal Code The end result is that we confirm the conviction and sentence of Kedar Prasad appellant, after the conviction of Ramlal appellant to one under Section 324 Indian Penal Code and sentence him to the period already undergone under all counts and dismiss the appeal of Rambali reducing his sentence to the period already undergone under all counts. Thus both the appeals are disposed of. Order accordingly.

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The Hon’ble Supreme Court in “Gurmukh Singh versus State

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of Haryana 2009(15) SCC 635”, held as under:-

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21. In the instant case, the occurrence had taken place at the spur of the moment. Only the appellant Gurmukh Singh inflicted a single lathi blow. The other accused have not indulged in any

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overt act. There was no intention or pre-meditation in the mind of the appellant to inflict such injuries to the deceased as were likely to cause death in the ordinary course of nature.

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22. On consideration of the entire evidence including the medical evidence, we are clearly of the view that the conviction of the appellant cannot be sustained under section 302 Indian Penal Code, but the appropriate section under which the appellant ought to be convicted is Section 304 Part II Indian Penal Code.

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23. Before we part with the case, we would like to clearly observe that we are not laying down that in no case of single blow or injury, the accused cannot be convicted under section 302 Indian Penal Code. In cases of single injury, the facts and circumstances of each case has to be taken into consideration before arriving at the conclusion whether the accused should be appropriately convicted under section 302 Indian Penal Code or under Section 304 Part II Indian Penal Code.

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24. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under :

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a) Motive or previous enmity;

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b) Whether the incident had taken place on the spur of the moment;

¶153

c) The intention/knowledge of the accused while inflicting the blow or injury;

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d) Whether the death ensued instantaneously or the victim died after several days;

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e) The gravity, dimension and nature of injury;

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f) The age and general health condition of the accused;

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g) Whether the injury was caused without pre-meditation in a sudden fight;

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h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

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i) The criminal background and adverse history of the accused;

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j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

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k) Number of other criminal cases pending against the accused;

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l) Incident occurred within the family members or close relations;

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m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

¶167

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.

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25. When we apply the settled principle of law which has been enumerated in the aforementioned cases, the conviction of the appellant under section 302 Indian Penal Code cannot be sustained. In our considered view, the accused appellant ought to have been convicted under Section 304 Part II Indian Penal Code instead of under section 302 Indian Penal Code.

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26. We accordingly convert the conviction and sentence of the appellant Gurmukh Singh from section 302 Indian Penal Code to one under Section 304 Part II Indian Penal Code and sentence him to suffer rigorous imprisonment for seven years. The fine as imposed by the trial court and as upheld by the High Court is maintained. The appellant would be entitled to get benefit of section 428 of the Code of Criminal Procedure.

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27. The appeal is partly allowed in the aforementioned terms and disposed of.

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Appeal partly allowed.

¶175

The Hon’ble Supreme Court in “Mariappan versus State

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represented by Inspector of Police 2024 AIR Supreme Court 253”, held as

¶177

under:-

¶178

8. Hence the only question that remains for consideration before us is whether the act of the accused is culpable homicide amounting to murder or not. In other words, the question is whether the acts of the accused would come under Exception 4 to Section 300 IPC or would be an act of culpable homicide amounting to murder punishable under Section 302.

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9. This Court in Rampal Singh v. State of U.P. (2012) 8 SCC 289, while altering the offence under Section 302 to Section 304 Part 1 of IPC, has elaborately discussed the distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder. What is held is that classification would be a matter of fact depending upon the evidence led in the trial. Broadly speaking, the factors to be considered are enumerated in paragraph 25 thereof. The same is been reproduced below:

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"25. As we have already discussed, classification of an offence into either part of Section 304 is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of premeditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code

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the accused is liable to be punished. This can also be decided from another point of view i.e. by applying the "principle of exclusion". This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, "culpable homicide amounting to murder". Then secondly, it may proceed to examine if the case fell in any of the Exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused."

¶185

10. It would also be apt here to refer to the judgement of Surinder Kumar v. Union Territory, Chandigarh (1989) 2 SCC 217, wherein this Court had laid down the grounds to invoke Exception 4 to Section 300 IPC:

¶186

"7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant no is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."

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11. In the present case, while looking at the facts and circumstances of the case, it can be seen that the appellant had

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suddenly stabbed the deceased during a heated verbal argument with him and not during a preplanned attack which was carried out with the sole intention of causing the death of the deceased. The previous enmity between the appellant and the deceased had been a contributory factor leading to the verbal altercation but it was not the reason for the accused to carry out a pre-planned fatal attack against the deceased. The appellant had acted "suddenly", in the heat of passion and without a pre-planned approach to kill the deceased.

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12. Right from the beginning i.e. he prosecution story as set up in the FIR was that initially there was a heated discussion between the parties and in a fit of anger the physical assault took place. Even the ocular testimony is also to the same effect. Although on the same evidence the Trial Court has acquitted two co-accused and convicted only the appellant. It has also come in evidence that the appellant had caused only one injury whereas other accused had caused multiple injuries. However, the Trial Court acquitted the other two accused.

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13. Hence, it can be safely concluded from the evidence led in the present case that the appellant's overt act of killing the deceased happened during a fit of anger in the heat of a passionate verbal quarrel and would fall under Exception 4 to Section 300 IPC. Moreover, the clear intent needed to prove culpable homicide amounting to murder has also not been established by the prosecution.

¶194

14. The appeal is partly allowed.

¶195

15. The conviction under Section 302 IPC is Converted to Section 304 Part-I with sentence of 10 years Rigorous

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Imprisonment and fine of Rs. 50,000/-, to be paid to the victim's family.

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The various High Courts have held as under:-

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In “Mangalsingh and others versus State of M.P. 1996 CriLJ

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1908”, the Gwalior Bench of the Madhya Pradesh High Court, held as

¶203

under:-

¶204

9. It is not disputed that Pharsa blow was given to Pitaram only by Mangalsingh and not by other accused persons. As mentioned above, Dr. R.S. Dixit, P.W. 12, in his testimony and in his letter, Ex. P-31, has very clearly stated that Injury No. 1 on the head was not caused by any sharp edged weapon. The Pharsa, therefore, appears to have been inflicted from the blunt side which resulted in the fracture of scalp and damage to the brain. Dr. G.D. Agarwal, P.W. 15, who performed the post mortem has also in his deposition stated that the injury caused on the head might have been caused by hard and blunt object. In para 12 Dr. R.S. Dixit, P.W. 12, has very clearly stated that injuries Nos. 1, 2 and 3 found on the person of Pitaram were not sufficient in the ordinary course of nature to cause death. The version, as stated by the prosecution witnesses, makes out a case of free fight, as held by us above. We cannot, therefore, infer any intention on the part of the accused Mangalsingh to commit murder of Pitaram. The injuries were caused by him in the course of quarrel which suddenly took place when Roshansingh had gone to lodge protest to the house of Thakurdas. The offence, therefore, committed by Mangalsingh would not be one under Section 302 Indian Penal Code but under Section 304, Part I, Indian Penal Code. Mangalsingh had also caused injuries to complainant Bhagwansingh and he

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has also been convicted under Section 325 Indian Penal Code. We are informed that he is in jail since the date of incident and has almost suffered nine years sentence. We, therefore, set aside his conviction under Section 302 Indian Penal Code and instead convict him under Section 304, Part I, Indian Penal Code, Section 325 and Section 148 Indian Penal Code and sentence him for the period already undergone.

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10. So far as the other accused-appellants Nos. 2 to 7 are concerned, they have all caused injuries by Luhangis and lathis. The injuries as per the injury reports, Ex. P-26 to Ex. P- 29 are all contusions, abrasions and lacerated wounds. As held above, there was no formation of unlawful assembly within the meaning of Section 149 Indian Penal Code and there was no common intention. They are all, therefore, liable to be convicted only under Section 325 and Section 148 Indian Penal Code. They are all on bail. Appellant No. 21, Thakurdas, Appellant No. 6 Jagdish and appellant No. 7 Bhagwatsingh have suffered about two months sentence and appellant No. 3 Kalyansingh, appellant No. 4 Parashram and appellant No. 5 Premnarayan have all suffered three months sentence each before they were enlarged on bail. In this case, both parties clashed and had caused injuries to members of other party. In the circumstances of the case, in our opinion, ends of justice would be met by sentencing appellants Nos. 2 to 7 to the period of imprisonment already undergone by them and fine of Rs. 2000/- (Rupees Two thousand only) each payable as compensation to the injured within three months. In default of payment of fine they shall suffer further rigorous imprisonment for six months.

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11. Consequently, the appeal only partly succeeds. The conviction of the appellants under Section 302 read with

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Section 149 Indian Penal Code is hereby set aside, instead appellant No. 1 Mangalsingh is convicted under Section 304, Part I, Section 325 and Section 148 Indian Penal Code and is sentenced to imprisonment for the period already undergone by him. The other appellants Nos. 2 to 7 are convicted for the offences under Sections 325 and 148, Indian Penal Code and are sentenced to the period of imprisonment already undergone by then and fine of Rs. 2000/- (Rupees Two thousand only) each payable as compensation to the injured within three months. In default of payment of fine they shall suffer a further sentence of rigorous imprisonment for six months. Their bail bonds are cancelled. All the appellants be set at liberty, if they are not otherwise required in connection with any other offence.

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In “Bhola Ram & Ors. versus State of Rajasthan, (D.B.

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Criminal Appeal No.22 of 2006 decided on 09.03.2015)”, the Jaipur Bench, Rajasthan High Court, held as under:-

¶217

41. In the present case, that the occurrence was sudden affair, without any pre-meditation due to the incident at the well, where Smt. Guddi was given beating by Sunita and Saroj. It is the family members of Guddi, who felt hurt and it has rightly been stated in the written report that immediately thereafter, ladies of both the houses had an altercation. To us, sudden occurrence had erupted in the street and both sides came to blows. It is a case of sudden fight.

¶218

42. It was held by the Hon'ble Supreme Court in the case of Jumman & Ors. v. State of Punjab [AIR 1957 Supreme Court 469] as under:-

¶219

"(24). In such a case where a mutual conflict develops and there is no reliable and acceptable

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evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under Section 300, I.P.C., Exception 4.

¶224

(25). The matter has to be viewed in this way. It is clear that there was no pre-meditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passions, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence Exception 4 to section 300, I.P.C., applies with the result that the offence is under Section 304 (Part I), I.P.C."

¶225

43. A Division Bench of this Court in Buddhi & Ors. v. State of Rajasthan [2007 (1) RCC 228], relying upon Dharman v. State of Punjab, AIR 1957 Supreme Court 324] held as under:-

¶226

"13. Coming to the incident that occurred with deceased Saltu we find that he sustained injuries in the course of sudden fight ensued in the field of accused party. The complainant party was also armed with deadly weapons and as many as eight accused persons received lacerated and incised wounds on the vital parts. In Dharman v. State of Punjab, AIR 1957 Supreme Court 324 the Supreme Court held that when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner and that the case against the accused falls within Exception 4 of Section 300 of the Indian Penal Code and the accused who caused the injury was guilty under Part I of Section 304 and not under Section 302 of the Indian Penal Code."

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44. Taking totality of the circumstances, we are of the view that the accused Bhola Ram and Yadram have been substantively

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convicted for the offence under Section 302 for having given fatal blows to Moti Ram, the deceased. Thus, Bhola Ram and Yadram are held responsible for causing death of Moti Ram. Considering that the occurrence was sudden affair, without any pre-meditation, we are of the view that the offence qua them will not fall under Section 302 I.P.C., but under Section 304-I I.P.C.

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45. Consequently, we convert the offence and set aside the sentence of life imprisonment awarded under Section 302 I.P.C. upon Bhola Ram. He is held guilty of offence under Section 304-I I.P.C. and sentenced to undergo ten years R.I. and to pay a fine of L 10,000/-, in default of payment of fine, to further undergo one year R.I.

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46. Substantive conviction of Bhola Ram for the offence under Section 307 and 325 is upheld. The sentence awarded to him on all the counts by the trial court shall run concurrently.

¶234

47. We acquit the accused, Ghanshyam of offence under Section 302/149, 307/149 and 325/149 and maintain his substantive conviction for the offence under Section 324, as he is also individually liable for the role played by him. Consequently, we also upheld the sentence of one year awarded upon Ghanshyam under Section 324 I.P.C.

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XXXXX XXXXXX XXXXX

¶236

49. Since we have held that Section 149 is not attracted, Prakash s/o Khayali Ram, Prakash s/o Mohan Lal, Ummedi Lal and Mannu Ram are acquitted of offence under Section 302/ 149, 307/ 149, 325/ 149 and 324/ 149 IPC and their substantive conviction for offence under Section 323 I.P.C. is upheld. We

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also uphold the sentence awarded to them under Section 323 I.P.C.

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With the above modification, qua offence and sentence noted, qua each appellant, the present appeal stands disposed of.

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In “Radheshyam and anr. versus State of Rajasthan, (D.B.

¶243

Criminal Appeal No.1095 of 2005 decided on 24.03.2015)”, the Jaipur Bench, Rajasthan High Court, held as under:-

¶244

17. The contention of the appellant is that as per prosecution evidence when goats entered in the field of the complainant party on a spur of moment without any premeditation, the occurrence happened. Latoor has inflicted only one injury to the deceased that too by blunt weapon. There is no repetition of the blows, hence the case of the appellant does not travel beyond the scope of Section 304 Part-I IPC. The contention of the counsel for the appellant seems sound and looking to the fact that incident has happened on a spur of moment when goats entered into the agricultural field of the complainant party. The appellant has not taken any undue advantage of the situation, he has not repeated the blow, consequently, we set aside the conviction of the appellant Latoor under Section 302 I.P.C. and convert it into 304 Part-I IPC.

¶245

18. It can be noted that prosecution witness has stated that Radheshyam has also inflicted injury by blunt weapon. PW/12 Ramdayal, PW/7 Shambhoo Dayal and PW/1 Ram Ratan have stated so but as considered earlier, the incident has occurred on a spur of moment. There was no pre-mediation of mind and when incident has occurred spontaneously, Section 34 I.P.C. would not come into play and common intention could not be attributed to Radheshyam but as specific injury has been

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attributed to him, he would be only liable for his individual act, hence his conviction under Sections 302 and 307 I.P.C. is set aside but conviction and sentence under Section 323 I.P.C. is maintained.

¶250

In the light of the above, the conviction of the appellant Latoor is converted from 302 I.P.C. to 304 Part-I I.P.C. As per arrest memo (Ex.P/18), Latoor was arrested on 29.10.2003. As stated by counsel, he is in custody from last 11 years and about five month, hence his substantive sentence is reduced to the period already undergone while maintaining the sentence of fine and default clause.

¶251

While maintaining the conviction and sentence of appellant Radheshyam for offence under Section 323 I.P.C., he is acquitted of offence under Section 302/34 and 307/34 IPC.

¶252

In “Banwari and others versus State of U.P. (Criminal Appeal

¶253

No.105 of 2012 decided on 20.11.2015) and Rakesh versus State of U.P.

¶254

(Criminal Appeal No.106 of 2012 decided on 20.11.2015)”, the Allahabad High Court held as under:-

¶255

16. Keeping in view the aforementioned legal position and the facts of the instant case which reflects that the incident has taken place on the spur of the moment and free fight took place between both the sides in which both sides have received injuries. Law is settled on the point that in case of free fight each and every accused shall be responsible for his own act and in the instant case both the accused persons are alleged to have given lathi blows to the deceased and the deceased has received two lathi blows on his head which proved fatal. So both the appellants have given one blow each on the deceased and no

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effort was made to repeat the blow on any vital part of the body. No undue advantage of the above situation was taken by any of the appellants and the offence was not committed with prior intention or premeditation. Thus this offence would fall under Section 304 part II IPC.

¶260

17. In these circumstances, the offence would fall only under Section 304 part II IPC. Accordingly, we are of the considered view that this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of both the appellants deserves to be modified from Section 302 IPC to Section 304 part II IPC and their sentence deserve to be reduced from imprisonment for life to the rigorous imprisonment for a period of five years and also with fine of Rs. 10,000/- each with default stipulation of two months additional imprisonment. The conviction and sentence inflicted by the learned trial court for the offence under Section 325 IPC is also hereby confirmed. The appellants Banwari and Rakesh are in custody. They shall serve out the sentence as modified by this Court. The period already undergone by the appellants in custody in this case, shall be set off in their substantive sentence in accordance with the provision of Section 428 Cr.P.C.

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In “Jagram and others versus State of Rajasthan (in DB

¶262

Criminal Appeal No.1255 of 2011 decided on 14.01.2016)”, the Jaipur Bench, Rajasthan High Court held as under:

¶263

23. Thus, to us, the trial court has rightly given a finding of free fight. In the facts and circumstances, due to non-impleadment of right of self defence, we cannot say with a definite opinion that from the case of prosecution itself right of self defence of property of accused or person is made out.

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24. Supreme Court in Lakshmi Singh & Ors. v. State of Bihar [(1976) 4 SCC 394] has held that if the injuries on the person of accused are not explained, it is to be assumed that prosecution has suppressed genesis and origin of the occurrence and thus, acquittal of the accused should be recorded. The relevant paras of the aforesaid judgment are as under:-

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"This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results

¶269

follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows:

¶270

In State of Gujarat v. Bai Fatima Criminal Appeal No.67 of 1971 decided on March 19, 1975 : ) one of us (Untwalia, J., speaking for the Court, observed as follows:

¶271

In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow:

¶272

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

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(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

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(3) It does not affect the prosecution case at all.

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The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.

¶279

It seems to us that in a murder case, the nonexplanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

¶280

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:

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(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

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(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."

¶283

25. Since both the parties, have withheld origin and genesis of the occurrence, it cannot be determined as to which party was aggressor. Thus, trial court has rightly held that it is a case of free fight. However, trial court wrongly came to the conclusion that Jagram and Kailash intended to cause death of Kanchan Lal, but Sajana Devi and Malli Devi have not shared the common intention with them. To us, this finding is not justified. Once the court come to the conclusion that it is a case of free fight, Section 34 IPC cannot be applied.

¶284

26. It was held by the Hon'ble Supreme Court in the case of Jumman & Ors. v. State of Punjab [AIR 1957 Supreme Court 469] as under:-

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"(24). In such a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under Section 300, I.P.C., Exception 4.

¶289

(25). The matter has to be viewed in this way. It is clear that there was no pre-meditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passions, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence Exception 4 to Section 300, I.P.C., applies with the result that the offence is under Section 304 (Part I), I.P.C."

¶290

27. A Division Bench of this Court in Buddhi & Ors. v. State of Rajasthan [2007 (1) RCC 228], relying upon Dharman v. State of Punjab [ AIR 1957 Supreme Court 324] held as under:-

¶291

"13. Coming to the incident that occurred with deceased Saltu we find that he sustained injuries in the course of sudden fight ensued in the field of accused party. The complainant party was also armed with deadly weapons and as many as eight accused persons received lacerated and incised wounds on the vital parts. In Dharman v. State of Punjab, AIR 1957 Supreme Court 324 the Supreme Court held that when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner and that the case against the accused falls within Exception 4 of Section 300 of the Indian Penal Code and the accused who caused the injury was guilty under Part I of Section 304 and not under Section 302 of the Indian Penal Code."

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28. Thus, taking totality of circumstances, we are of the view that conviction of the accused-appellants Jagram and Kailash cannot be sustained for offences under Sections 302 and 302/34 IPC respectively. Both the accused have caused one injury each on the head of deceased Kanchan Lal, thus by applying ratio of law laid in Jumman's case (supra) and Dharman (supra), Jagram and Kailash are liable to be convicted for offence under Section 304 Pt.I IPC.

¶296

29. Consequently, we convert the offence qua the appellants and set aside the sentence of life imprisonment awarded under Section 302 IPC upon Jagram and Kailash. They are held guilty of offence under Section 304 Pt.I IPC and sentenced to undergo ten years rigorous imprisonment. They are further held liable to pay a fine of Rs. 10,000/- and in default thereof to undergo one year rigorous imprisonment.

¶297

A perusal of the aforementioned judgments would show that where injuries were caused without pre-meditation in a sudden fight, which had taken place on the spur of the moment and the deceased had received a single fatal injury, then, ordinarily, Section 34/149 IPC would have no application and each accused would be convicted for the individual role played by him in as much as, the accused who has given the fatal injury on the person of the deceased would be liable for having committed an offence under Section 304 IPC, whereas the other accused would be liable for the individual injuries caused by them to the deceased and other injured.

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Coming back to the facts of the instant case, as per the prosecution case, initially, Salma daughter of Nasru was told some obscene jokes by Yakub. Later, when the complainant party was going to SUKHPREET KAUR 2025.05.13 21:24 I attest to the accuracy and integrity of this document remonstrate to the house of Yakub, then Yakub met them on the way, got chandigarh

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annoyed and spoke loudly with the complainant party. It was then that the other accused came one after the other. Only Akhtar was armed with a farsa (axe ) whereas Fajru, Yakub, Sufeda and others (found innocent) were armed with lathis. Akhtar gave a single blow of the farsa on the head of Dhatoli which proved to be fatal. The other blow on the person of Dhatoli was given by Yakub with a lathi on his right wrist. Yakub also gave a simple injury each on the right thumb of Issa and right arm of Moosa respectively. Fajru caused lathi blows on the palm of Nasru causing fracture of metacarpal bone and right proximal phalanx of the right little finger. Sufeda (since deceased) caused a simple injury with a lathi on the left elbow of Nasru. It is apparent that it was a sudden fight, without pre-meditation in the heat of the movement only lathis and a farsa were used and it cannot be said that the accused party acted in a cruel manner or took undue advantage. Further, three persons from the side of the accused, namely, Sufeda, Akhtar and Yakub received simple injuries, though unexplained by the prosecution and a cross-report bearing DDR No.28 dated 09.10.1999 Ex.DF/1 came to be registered at the instance of Akhtar against the present complainant side. Thus, in the facts and circumstances of the present case, it cannot be said that the accused formed an unlawful assembly the object of which was to commit the murder of the deceaded-Dhatoli and therefore, each accused would be liable for the individual role/injury attributed to him.

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In view of the aforementioned discussion, the conviction of the SUKHPREET KAUR 2025.05.13 21:24I attest to the accuracy and accused-appellants No.2 to 4, namely, Akhtar, Fajru and Yakub is modified integrity of this document chandigarh

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as under:-

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The conviction of accused-appellant No.2/Akhtar is modified from Section 302/149 IPC to that under Section 304(I) IPC and he is sentenced to undergo rigorous imprisonment for a period of 07 years and to pay a fine of Rs.15,000/-. In default of payment of the fine, he shall undergo rigorous imprisonment for a further period of 01 year.

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The conviction of accused-appellant No.3/Fajru for the offence punishable under Section 302/149 IPC is set aside. His conviction for offence under Section 325/149 IPC is modified to that under Section 325 for having caused grievous injuries on the person of Nasru and is sentenced to undergo rigorous imprisonment for 03 years, to pay a fine of Rs.500/- and in default of payment of fine, he shall further undergo rigorous imprisonment of 03 months. Similarly, his conviction for offence under Section 323/149 IPC is modified to that under Section 323 for having caused simple injuries on the person of Nasru and is sentenced to undergo rigorous imprisonment for 06 months. Both the sentences shall run concurrently.

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The conviction of accused-appellant No.4/Yakub for the offence punishable under Section 302/149 IPC is set aside.

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His conviction for offence under Sections 323/149 is modified to that under Section 323 IPC for having caused simple hurt to Dhatoli, Issa and Moosa and is sentenced to undergo rigorous imprisonment for 06 months for injury caused to Dhatoli and a similar sentence for injuries SUKHPREET KAUR 2025.05.13 21:24 I attest to the accuracy and caused to Issa and Moosa. integrity of this document chandigarh

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The conviction of accused-appellant No.4/Yakub for having committed the offence under Section 294 IPC is upheld. The sentence of rigorous imprisonment for 02 months as imposed by the Trial Court shall remain unaltered.

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All the sentences awarded to accused-appellant No.4/Yakub shall run concurrently.

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All the accused are acquitted for having committed the offence under Section 148 IPC.

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