KAPUR, J. - (1.) THIS appeal is directed against the judgment of learned Sessions Judge, Alwar, dated June 27, 1985, by which the accused appellants have been convicted and sentenced in the following manner:- Lala alias Munshi: U/s. 302 IPC Imprisonment for life and a fine of Rs. 200/- and in default of payment of fine to undergo 2 years rigorous imprisonment. U/s. 326 IPC Three years rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine, further two years rigorous imprisonment. U/s. 325 IPC Two years rigorous imprisonment and a fine of Rs. 200/-, and in default of payment of fine, one months rigorous imprisonment. U/s. 148 IPC 1 year's rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine, one months rigorous imprisonment. Bhola alias Ram Prasad, Babulal, Mst. Hardei and Mst. Krishna U/s. 148 IPC One years rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine, further one months' rigorous imprisonment. U/s. 324, read with Sec. 140 IPC Three years rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine two months rigorous imprisonment. U/s. 324, read with Sec. 149 IPC Two years rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine, one months rigorous imprisonment.
(2.) THE facts of the case lie in a very narrow compass, which may be seen from the first information report, which was lodged by Khushi Ram P. W. 1, who was injured, He himself was at his field when a quarrel took place between his sons and the sons of Bhola accused and information about the same was conveyed to him by his son Sheo Ram. Sheoram informed that he and his brother Raghuveer were beaten by Babulal and others and the villagers intervened to separate them. At that time Babu Lal said that he would see that the matter does not end there. In the evening Khushi Ram was returning from his field, Babulal came again with Bhola, Lala another Babulal, Hardei and Krishna with lathies and farsies. Hardei caught hold of Khushi Ram and Babulal gave a lathi blow, then the other Babulal, Bhola and Krishna also gave blows. Raghuveer came there on hearing shouts, alongwith Budhram. Lala accused gave a farsi blow to Raghuveer and also a farsi blow on Budh Ram. Other accused gave lathi blows on Raghuveer, when he was lying down. Raghuveer became unconscious. This incident is said to have occurred on 31. 7. 1982, at about evening time and a case was registered on the statement of Khushi Ram, who was injured and admitted in the hospital. THE learned Sessions Judge, Alwar, considered the evidence and found that the incident arose out of a trifle matter, which was that Slier Singh and his sister Mst. Bramha were coming with their buffalo, then this buffalo climbed the Chabutra of Babulal, upon which he got annoyed and gave a slap to Mst. Bramaha. Sher Singh made a complaint about this incident to his mother and his mother went to Babulal and protested. Upon this, accused Babulal and Lala hurled abuses at them and the small incident of the buffalo going on the Chabutra, led to the incident in question, in which Raghuveer lost his life and other received injuries. According to the learned counsel for the appellants, the accused persons also received injuries in this case and there is no explanation of their injuries. According to him the offence committed by the accused does not fall under Sec. 302 IPC but it is a case where the incident occurred on the spur of the moment upon a sudden quarrel in a sudden fight and there can be no occasion for all the accused persons forming an unlawful assembly and having a common object of causing the death of any person. According to him Raghuveer deceased received only three injuries and it is only unfortunate that he died as a result of one of them. In this context the injuries of the deceased Raghuveer, Khushi Ram and Budh Ram on the side of the complainant and others on the side of accused may be seen so that it may be appreciated as to whether this is a case which can be said to fall within the exception No. 4 of Section 300 and if so, what offence can be said to have been committed by each of the accused. If it can be said that they were also beaten by the complainant party and they had a right of private defence, then only the accused who can be said to have exceeded this right and can be said to be guilty of offence under Section 304 IPC while the others would be guilty of offences according to their individual act. Injuries on Raghuveer (1) Incised wound 11 cm x 2 cm x 14. deep on left side scalp in sagittal 6 cm above ear with bleeding. (2) Haematoma 6 cm x 4 cm area on right side, pariets temporal region with bruse 4 cm x 2 cm area. (3) Lacerated wound 2-1/2 cm x 1/3 cm long on left leg. Injuries on Khusi Ram (1) Bruise 6 cm x 2m on right forearm upper 1/2 with swelling and tenderness. (2) Haematoma 4 cm x 4 cm area on right parieto-temporal region just above ear. (3) On left hand finger tenderness (4) On right knee tenderness. Injuries on Budh Ram (1) Incised wound 9 cm x 2-1/2 cm x bone deep longitudinal on dorsum of left hand. (2) Incised wound 5 cm x 3 cm x above deep on right elbow posteriorly upto lower part arm with bleeding. (3) Abrasion 5 cm x 1 cm long on left side sacram. A look at the injuries would go to show that Raghuveer alone received one injury on the head which was the cause of his death while all the other injuries on the complainant side were simple in nature besides one injury of accused Khusi Ram, on finger and one injury of Munshi Ram, which resulted in fractures. One injury of accused Mst. Hardei is grievous. The total injuries of the accused are ele\en in number. When the injuries of the accused persons have not been explained then it can be said that the genesis of the incident as given by the prosecution witnesses is not a complete truthful version and the incident could have occurred as has been sub bested by the accused persons. Their case is that after the incident about the buffalo when Lala slapped the girl Brahma, it was the complainant party, which came to their house to attack them and it was while protecting themselves, injuries to Raghuveer and others were caused. We are in agreement with the contentions of the learned counsel for the appellants. This is an incident which occurred on account of a minor matter after which each side gave some blows to the other in the heat of passion on the spur of the moment For such an incident, it cannot be said that the accused persons had formed an unlawful assembly, the object of which was to cause the death of any one person and to cause injuries to others. Each of the accused can be held guilty of the act, which has been attributed to him. When the circumstances show that there was no unlawful assembly and no common object to cause the death of any one or cause such injury, which can be said likely to cause death or sufficient in the ordinary course of nature to cause death, then the offence of all accused cannot fall under Section 302 I. P. C. , but will be according to the act of each accused. The case of Lala may be taken up first. He is responsible for the injury No. 1 of Raghuveer, which has resulted in his death. His act in inflicting this injury can be said to fall under exception 4 of Section 300 because the incident occurred in the spur of the moment in the heat of passion, upon a sudden quarrel, so he is responsible for the offence under Section 304 Part (1) I. P. C. The other injury caused by Lala is a grievous injury with a sharp weapon to Budh Ram, for which he is guilty under section 326 I. P. C. Accused Bhola and Babu caused grievous hurt to Khusi Ram and their offence falls u/s 325 IPC. As regards accused Hardei and Krishna are concerned, they are stated to have inflicted blows but no corresponding injury can be found on the complainant side so as to say that they are guilty of any offence. Thus they are entitled to be acquitted. During the arguments the learned counsel for the appellants submitted that he undertakes to with-draw the cross-case, which has been initiated by the appellants against Khushi Ram, Budh Ram and others and in view of this, it is considered that the sentences of Lala, for the period already undergone by him would suffice for the offence under Section 304 (1) IPC. The conviction of the accused appellants is made by learned Sessions. Judge is altered. They are acquitted of the offence under Section 302 IPC and 302 read with Sec. 149 IPC. They are convicted and sentenced as under;- Accused Lala Under Section 304 (1) for imprisonment already undergone by him, which is over four years and a fine of Rs. 200/ -. In default of payment of fine to undergo rigorous imprisonment for two months.
(3.) UNDER Section 326 IPC imprisonment for two years and a fine of Rs. 1,000/- in default of payment of fine to suffer rigorous imprisonment for four months. Both the sentences shall run concurrently. Accused Babu and Bhola For the offence under Section 325 IPC, the sentence of three months and four days already undergone is sufficient and besides this they shall pay a fine of Rs. 500/- each. In default of payment of fine, they shall undergo rigorous imprisonment for two months each. The total fine of Rs. 2200/-, when realized, shall be paid by way of compensation to the widow and all children of the deceased Raghuveer and in case he has not left behind any widow or children, the same shall be paid to his father Hari Kishan. The appellants Lala, Babu and Bhola are allowed two months time to pay the fine. The Sessions Judge, Alwar, is directed to make arrangements for disbursing the fine, if the same is deposited, in accordance with the above directions. Accordingly the appeal of Hardei and Krishna is accepted and they are acquitted of all the offences, while the conviction of the three appellants is altered as stated above. . ;