- (1.) M. M. Lal, J. These two appeals have been filed against a judgment and order dated 29. 9. 78 passed by Sri U. D. Shukla, the then III Addl. Sessions Judge, Varanasi, by which he has convicted the above named three appellants under Sec. 302/34 I. P. C. and has sentenced each of them to undergo imprisonment for life. Indra Deo Misra and Virendra Misra appellants are real brothers. They are sons of Jagesar Misra. Chhabinath Misra is the real brother of Jaqesar Misra. Chhabinath Misra has no male issue. Lalji Yadav appellant is said to be the companion of the remaining two appellants. Vishwanath deceased and P. W. 1 Barhi informant were real brothers. They had taken agricultural land of aforesaid Chhabi nath Misra on 'batai', and were thus cultiva ting the said land. According to the case of the prosecution on 21. 11. 77 at about noon P. W. 1 Barhi informant was irrigating the aforesaid field which had been taken on 'batai' from Chhabi nath Misra. Barhi informant was lifting water with the help of 'panbaha' to the said field. Nandlal and Nagina were also lifting water from the 'garhi' of Nand Lal with the 'don'. Vishwanath deceased wa:> preparing 'kiyaris'. After preparing 'kiyaris' Vishwanath deceased sat on a 'lat' (high mend) of the field. It is further the case of the prosecution that on the said date i. e 21. 11. 77 at about 12 in the noon, when Vishwanath deceased was sitting on the 'lat', all the three appel lants armed with 'lathis' came there and enquired frpm Vishwanath deceased as to whose 'bapauti' (inheritence) he was sitting. To thfe same Vishwanath deceased replied that the said inheritance (property) was that of Chhabinath Misra. On the same all the three appellants struck one 'lathi' blow each on the head of Vishwanath decea-'sed as a result of which he fell down uncon scious at the spot. Barhi informant, who was working at a distance of fifteen steps, rushed to the rescue of his brother Vishwa nath but the appellants wielded 'lathi' on him. However, Barhi informant protected himself with the help of 'panbaha' which he was carrying, and therefore, escaped hurt. Bikarama and Shyam Karan, who were scraping grass nearby and Nand Lal and Nagina, who were also working nearby, rushed to the place of occurrence. The appellants then ran away from the place of occurrence. Barhi informant and others rushed Vishwa nath to the Dhanapur Hospital, where his injuries were examined. He was then referred to S. S. P. G. Hospital Varanasi, where he died on the same day at 6. 00 p. m. Barhi P. W. 1 got the report of the incident written from aforesaid Chhabinath Misra. He took the same to P. S. Dhanpur, situated at a distance of 3 kms. where he lodged the same on the same date at 1. 30 p. m. In support of its case the prosecution examined seven witnesses. P. W. 1 Barhi, P. W. 2 Bikarma and P. W. 3 Shyam Karan have given an eye-witness account of the incident. PW. 4 Brij Kishore Singh S. I. had gone to S. S. P. G. Hospital, Varanasi where he prepared the inquest report of the dead body of Vishwanath deceased on 21. 11. 77, P. W. 6 Aditya Giri was S. O. P. S. Dhanapur. On 21. 11. 77 at 1. 30 p. m. this case was regis-tered in his presence under Section 307 I. P. C. It may be noted that subsequently when information regarding the death of Vishwanath was received at police station, this case was converted into a case under Section 302 I. P. C. The investigating officer had started investigation of this case from 21. 11. 77. The Investigating Officer went to S. S. P. G. Hospital Varanasi, where he found Vishwanath in an unconscious condition. The Investiga ting Officer recorded the statements of P. W. 1 Barhi, P. W. 2 Bikarama and others. He inspected the place of occurrence and prepared the site plan thereof. On 24. 11. 77 the Investigating Officer recorded the state ments of P. W. 3 Shyam Karan and others. He searched for the appellants but to no avail. He submitted a report for taking action against the appellants under Sec. 82-83 Cr. P. C. On receipt of the warrants the Investigating Officer attached the property of the appel lants on 26. 11. 77. P. W. 5 Dr. Tej Bahadur Rai was Medical Officer Incharge, Dhanapur Hospital. On 21. 11. 77 at 12. 10 p. m. he had examined Vishwanath and found the following injuries on his person: 1. Contusion with swelling 1 cm x 9 cm on left side of head. 8 cm above the left ear. Kept under observation and advised for X-ray and technical opinion. T. . Contusion with swelling 15 cm x 13 cm on tight side of head starts just above right ear. kept under observation. Advice for X-ray and technical opinion. 3. Lacerated wound 2 cm x. 5 cm x. 5 cm on left side of head. 13 cm above from left ear. At the time of the examination of his injuries Vishwanath was unconscious. The post mortem examination of the dead body of Vishwsnath deceased was conducted by P. W. 7 Dr. A. K. Dwivedi, the then Medical officer, S. S. P. G. Hospital, Varanasi on 22. 11. 77 at 3 p. m. He found the following ante mortem injuries on the dead body. 1. Contusion 9 cm x 7-1/2 cm over left parietal. 8 cm from left ear.
(2.) CONTUSION 12 cm x 10 cm over right temple 2 cm above right ear. Lacerated wound 2 cm x 1/2 cm x skin deep (scalp) over left side head 12 cm from left ear. On internal examination the doctor found that left parietal bone frontal bone on left side and right temporal bone were fractured. The skull base was also found fractured in the middle. According to the doctor the death of Vishwanath had taken place due to aforesaid head injuries. The appellants in their statements record ed u/sec. 313 Cr. P. C. admitted that Chhabinath Misra was the uncle of Indra Deo Misra and Virendra Misra appellants. The also admitted that in execution of warrant u/sec. 82-83 Cr. P. C. their properties were attached. The appellants, however, denied the remaining case of the prosecution. Indra Deo Misra appellant further stated that Chhabinath Misra was originally a driver in the military but was living in the village from 10-12 years, that he had let out his land on 'batai' and that on the date of the incident there was a rumour that Vish wanath deceased dishonestly had got his name recorded over the chak belonging to Chhabinath Misra. He further stated that on account of the same there was quarrel and altercation between Chhabinath Misra and Vishwanath deceased and that Chhabinath Misra had beaten Vishwanath with an iron rod etc. Virendra Misra appellant stated that there was litigation between his family and the family of Lalji Yadav appellant. He also stated that with Chhabinath Misra there was litigation before the consolidation authorities. I alji Yadav appellant further stated that one month prior to the incident there was a quarrel between him and Chhabinath Misra and that on account of the said enmity Chhabinath Misra got him falsely implicated in this case. He further stated that prior to this incident litigation had also taken place between him and the family members of Indra Devo Misra appellant. The appellants however did not produce any witness in defence. Learned Sessions Judge believing the case set up and the evidence produced by the prosecution has convicted and sen tenced the appellants as aforesaid. Aggrieved by the same the appellants have filed this appeal. We have heard learned counsel for the appellants and the State and have perused the record carefully. P. W. 1 Barhi has stated in his evidence that on the date of the incident at 12 in the noon when he and Vishwanath deceased were present in the aforesaid field, taken on Batai from Chhabinath Misra, for the purpose of irrigating the said field, all the three appellants armed with 'lathis' came there and enquired from Vishwanath decea sed as to whose 'bapauti' (inheritence) he was sitting and that when Vishwanath replied that the said Bapauti (property) was that of Chhabinath Misra, then each of the appellants struck one lathi blow on the head of Vishwanath, who was sitting on the Lat (high mend) of the field, as a result of which he fell unconscious at the spot. He further deposed that at the said-time he was present at a distance of fifteen steps and that when he rushed to the rescue of his brother, the appellants attacked him but he saved himself and took the lathis blows on the 'panbaha', which he was carrying. He also deposed that P. W. 2 Bika-rama and P. W. 3 Shyam Karan and others, who were nearby, also rushed to the place of occurrence but the appellants ran away from the place of occurrence. P. W. 2 Bika-rama and P. W. 3 Shyam Karan, who were scrapping gross nearby, have deposed that they had seen the incident. They have also narrated the incident in detail. We have carefully gone through the evidence of P. W. 1 Barhi, P. W. 2 Bikarama and P. W. 3 Shyam Karan. Their evidence is consistent. There is no contradiction in their evidence with regard to any material detail of the incident. All of them are natural witnesses. P. W. 2 Bikarama and P. W. 3 Shyam Karan had neither affinity for the prosecution side nor any enmity with the appellants. They had no reason to falsely implicate the appellants. Their evidence inspires confidence. Although it has not been argued before us yet we find from the statements of Indra Deo Misra appellant' recorded u/s 313 Cr. P. C. that according to' him it was Chhabinath Misra who had infact caused injuries to Vishwanath with an iron rod. In our opinion had Chhabinath Misra given the fatal blows to Vishwanath then P. W. 1 Barhi informant, being the real brother of the deceased, would have been the last person not to name Chhabinath Misra and in his place to falsely implicate the appellants. Moreover, it may be observed that at that time, i. e. on 21. 11. 77 at 1. 30 p. m. when the F. I. R. of this incident was lodged at the police station, Vishwanath was alive and had not succumbed to his injuries. Therefore, at that time Barhi infor mant could not possibly think that in case Vishwanath survived he would also to?x his line and would falsely name Chhabinath Misra in place of the real culprits, i. e. appel lants. We are, therefore, not prepared to believe that the real assailant was Chhabinath and not the appellants. Learned counsel for the appellants has referred to us that part of the evidence of P. W. 1 Barhi where he has stated that prior to this incident there was neither any enmity nor any altercation or 'marpit had taken place between his family members and. the appellants, and on the basis of the same has argued that there was no reason whatsoever for the appellants to have commit ted this aggression against Vishwanath. In this respect we have to read the evidence of P. W. 1 Barhi informant as a whole. It may be observed that in para 3 of his evidence P. W. 1 Barhi stated that the appellants were, feeling aggrieved with Vishwanath deceased because had they not taken the field of Chhabinath Misra on 'batai' then they (appel lants) would have somehow usurped the, said land. This version of P. W. 1 Barhi finds a support from the fact that immediately after arrival at the place of occurrence the appellants had enguired from Vishwanath deceased as by what right he was present in the aforesaid field. Besides, it is well known that the evidence regarding existence of moti. ve which operates in the mind of an assassin in very often not within the reach of others. The motive Imay not even be known to the victim of the crime. The motive may be known to the assassin only and to no one else. . Moreover when this incident took place in broad day light in the presence of the eye-witnesses the motive would not play an important part in the same. Learned counsel for the appellants has taken us through the cross-examination of P. W. 1 Barhi where he has stated that even after Vishwanath had fallen down. , he was inflicted three Lathi blows, and on the basis of the same has argued that the said version belies the case of the prosecution that Vishwanath had fallen down un conscious after receiving three lathi blows while sitting and had not afterwards received any lathi blows. It is true that examination-in-chief of P. W. 1 Barhi and the evidence of P. W. 2 Bikrama and P. W. 3 Shyam Karen was positive on the point that Vishwanath had received the lathi blows only whom he was sitting on the aforesaid Lat (mend ). It may be observed that P. W. 1 Barhi was neither asked nor he himself stated that Vishwanath had in all sustained six Lathi blows and not three. M. appears that during the course of the sustained cross-examination, lie stated that Vishwanath after falling had sustained the said three (tathi) blows. Much importance cannot be attached to the same. the fact remains that Vishwanath had received at this blows only when he was silting, on the 'lat'. It appears that P. W. 1 Barhi range the aforesaid statement under some confusion. P. W. 1 Barhi was very much present at the place of occurrence. Otherwise, it would not have been possible for him to take Vishwanath to Dhanapur Hospital to get him examined there on the same date at 12. 30 p. m. It may be observed from the injury report that it is specifically mentioned that Vishwa nath was brought to the Hospital by Barhi and others. Learned counsel for the appellants also pointed out that the medical examination of Vishwanath was conducted en 21. 11. 77 at 12. 10 p. m. No doubt it is stated in the F. I. R. that this incident took place at 12 iii the noon. That time of the incident re ferred in the F. I. R. was obviously by guess and estimate. It is possible that the incident may have taken place a few minutes prior to the ' noon. However, the time noted in the injury report prepared by a qualified doctor must have been done with the help of a watch. The case of the prosecution, therefore, is not believed from any such discrepancy in the time recorded in the F. I. R. and the medical report. In this case the post crime conduct of the appellants is also relevant and cannot be lost sight of. P. W. 6 Aditya Giri has stated in his evidence that when the appellants could not be traced he submitted a report for taking action under Sections 82-83 Cr. P. C. He further deposed that on receipt of the said warrants he had attached the properties of the appellants on 26. 11. 77. All the appel lants in their statements recorded u/sec. 313 Cr. P. C. (see their reply to question No. 14) admitted that their properties were attached. I he said post crime conduct of the appellants lends further support to the case of the prosecution. It shall be relevant at this place to refer to State of U. P. v. Anil Singh 1989 S. C. Cr. R. Page 5 Gurnek Singh and another v. State of Punjab 1989 S. C. C. (Cr.) page 70 and Subedar Tewari v. State of U. P. and others 1989 S. C. C. (Cr.) page 218 where it was observed that abscondence and post crime unnatural conduct, of an accused was relevant. To sum up, we are of the opinion that it is proved beyond any reasonable doubt that the appellants had caused the aforesaid fatal blows to Vishwanath deceased and that therefore, they had committed this crime. The main argument, advanced by I he learned counsel for the appellants in I hi'. case before us is that at the most the offence which could possibly be made out against the appellants was the offence under Section '504 I. P. O. In this context he has submitted that there was no pro-meditation on the part of the appellants and that, therefore, the appellants could not lie said to have been guilty under Section 500 I. P. C. In our opinion this argument has got no substance and merit. An offence would, be covered under Section 304 I. P. C. only when it is found that the said offence is culpable homicide not amounting to murder. Culpable homicide would not be murder when it is covered by one of the five exceptions given in section 300 I. P. C. There can be no guest ion of the case of the appellants being covered by exceptions Nos. 1,2, 5 and 'of Section 500 I. P. C. All that has to be seen is whether the case of the appellants can come under exception 4 of Section 500 I. P. C. which runs as follows: Exception 4: "culpable homicide is not murder if it is committed without prernedi alien in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation: it is immaterial in such case which partly otters the - ;r evocation or commits the first assault. " A case would be thus covered by the said exception 4 only when the following conditions are satisfied: 1. That it was a sudden fight (2) that there was no pre-medilation, (3) that act was done in heat of passion and (4) the assailants assailant had not taken undue advantage or acted in a cruel manner. Neither the cause of the quarrel is relevant nor it is relevant who offered provocation or started assault. Before aforesaid exception 4 can be applied it is necessary that all and not some of the aforesaid conditions are satisfied. In Surinder Kumar v. Union Territory, Chandigarh 1989 A. Cr. R. Page 239. Hon. Supreme' Court, while discussing the requirements before invoking exception 4 to Section 300 I. P. C. observed as follows: "to invoke this exception four requirements must be satisfied namely (1) it was a sudden fight; (ii) there was no premedita tion; (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 nor is it relevant who offered the provocation or started 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 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. " In this case the first and foremost require ment of aforesaid exception 4 to Section 300 I. P. C. , that there should be "a sudden fight" is not satisfied. There could be 'fight' when mutual blows are given. For a fight there had to be more than one combatant, in physical combat. In this case when Vishwa-nath was just sitting unarmed on a 'lat' i. e. high mend of the field, and according to P. W. 1 Barhi (see para 7 of his evidence) Vishwanath was smoking 'biri' the appellants started giving 'lathi' blows on his head. Vishwanath deceased had not exchanged any blow with the appellants. The deceased did not cause any injury to the appellants or any of them. There was, therefore, no question of any 'fight' having taken place. In Bhagwan Munjaji v. state of Maharashtra A. I. R. 1979 SC 133 where quarrel between the assailant and the deceased had broken out suddently but-there was no sudden fight or fight as such because the deceased was unarmed and there was no exchange of blows and the deceased did not cause any injury to the accused and no less than three fatal injuries were inflicted on the deceased an unarmed victim. , it was observed that the accused was not entitled to the benefit of exception 4 of the Section 300 I. P. C. At the risk of the repetition we may observe that when Vishwanath deceased was just sitting on the 'lat' i. e. high mend of the field, when he was unarmed and when he had not exchanged any blow nor had caused any injury to any of the appellants and even then he was given three Lathi blows on his head, it could not by any stretch of an argument said that the deceased had fought with the appellants. Therefore, the first and foremost requirement -of the aforesaid exception 4 that there should be a sudden fight is not satisfied in this case. The second requirement that there should be no premeditation is also not fulfilled in this case. It has come on record that the appellants had come" to the place of occur rence duly armed with 'lathi's'. Not only this but the talk they had with Vishwanath deceased shows that they had come prepared to commit this crime. The appellants had asked Vishwanaih deceased as by what right he was sitting in the said field. This version strengthens the case of the prosecution that the appellants were not prepared to tolerate the prospect of Chhabinath Misra to continue to give his land on 'batai' to others. It is thus not proved that there was absence of premeditation in this case. Before the appellants could take advantage of aforesaid exception 4 they have to satisfy all and not some of the requirements of exception 4 of Section 300 I. P. C. when in this case the requirement of a fight and absence of premeditation are not satisfied, this case is not covered by exception 4 of Section 300 I. P. C. Lastly, learned counsel for the appellants has urged before us that in this case there was no intention on the part of the assailants to cause the death of Vishwanath deceased, in our opinion the said argument is without 'norit and force. The medical evidence reveals that all the three lathi blows were given cm the head of Vishwanath. Not only, the said injuries were caused on vital part of the body but also the said Lathi blows were given with a great force so much so that left parietal bone, frontal bone on left side and right temporal bone were fractured. Scalp bone in the middle was also found fractured. The assailants had also left beating Vishwanath only when he had fallen down at the spot unconscious. It may be noted that when Vishwanath was medically examined, immediately after the occurrence on 21. 11. 77 at 12. 10 p. m. by Medical Officer Incharge Dhanapur Hospital, he was found unconscious. It may also be observed that according to P. W. 7 Dr. A. K. Dwivedi, who conducted the post mortem examination of the dead body of Vishwanoth, the external injuries sustained by Vishwanath were sufficient in ordinary course of nature to cause his death. Therefore, we are convinced that there was intention on the part of the appel lants to cause 'he death of Vishwanath, the appellants had caused the afore said injuries to Vishwanath with an intention to cause his death and that the said bodily injuries were sufficient in the ordinary course of nature to cause his death. This case was thus covered by clause third of Sections 300 I. P. C. The appellants were thus guilty of the offence of murder. In view of the observations made above, and for the reasons stated, we are of the opinion that the appellants have been rightly found guilty under: Section 302/34 I. P. C. Accordingly, Criminal Appeals No. 2777 of 1978 and 2777 of 1978 are dismissed. The conviction and sentence of Virendra Misra, Lalji Yadav and Indra Deo Misra appel lants under Section 302/34 I. P. C. are upheld The appellants are on bail. They shall be taken into custody forthwith so that they may serve out the sentence of life imprisonment imposed on them. Appeals Dismissed. .;