DILIP KUMAR MONDAL & ANR.versusSTATE OF WEST BENGAL

                      [2015] 1 S.C.R. 907


               DILIP KUMAR MONDAL & ANR.                               A
                                v.
                 STATE OF WEST BENGAL
              (Criminal Appeal No. 82 of 2015)
                      JANUARY 14, 2015
                                                                       B
         [T.S. THAKUR AND R. BANUMATHI, JJ.]

      Penal Code, 1860: ss. 302134 - Allegation that PW-3, the
brother of deceased was working with his sons PW-11 and
PW-12 in his field - Deceased and his son PW-10 on bullock             C
cart crossed the field of appellants-accused to which
appellants objected resulting in altercation - One appellant
inflicted injuries in the abdomen of the deceased with the pasli
and other appellant attacked him with a dau - When PW-10
tried to rescue his father, he was also badly beaten by the            D
accused - PWs11 and 12 were also assaulted - Courts
below convicted the appellant ulss.302134 - Held: The
contradiction pointed out in the evidence of the witnesses and
the discrepancies in the prosecution case were duly
considered by the courts below - The contradictions so                 E
pointed out by the appellants did not create infirmity in the
prosecution case - The defence plea that the false case was
foisted on the accused due to political rivalry was not
substantiated - On the evidence of injured witnesses and
other, the courts below had correctly recorded concurrent              F
findings of fact that the appellants inflicted fatal injuries on the
deceased - The entire evidence and the facts and
circumstances of the case showed that there was no
premeditation on the part of the appellants and the incident
was a sudden fight and the scuffle between the parties led to
the causing of injuries to the deceased - Considering the              G
injuries, it cannot be said that accused took undue advantage
of the situation - Offence fall u/s. 300 Exception 4 - Conviction
of the appellants modified and altered to one u/s.304 Part I.

                                907                                    H
    908       SUPREME COURT REPORTS             [2015) 1 S.C.R.


A         Disposing of the appeal, the court
       HELD: 1. The contention was raised by the defence
  that the details of attack with dau were not mentioned in
  the complaint. By and large, people cannot be expected
  to have a photographic memory of the incident to recall
8
  the minute details of the incident. Immediately after the
  incident, PW-3 must have been under shock and in such
  disturbed mental condition, while he was narrating the
  incident to Pradhan of village to reduce the complaint into
  writing, PW-3 might have omitted to mention that second
C appellant caused hurt to the deceased with dau. Such
  omission, would not affect the credibility of evidence of
  PW-3. Evidence of PW-11 amply corroborated the
  evidence of PWs 3 and 10. Evidence of injured witnesses
  PWs 10 and 11 lent credence to their testimony and their
D evidence is entitled to great weight. Despite searching
  cross-examination, nothing substantial was elicited from
  PWs 10 and 11 to discredit their evidence. PW-6 who was
  doing agricultural work in his field had also stated that
  he had heard one jhamela and when he went to the place
E of incident, a maramari took place. PW-6 had spoken
  about the overt act of each of the appellants and causing
  injuries to the deceased and others. The contradiction
  pointed out in the evidence of the witnesses and the
  discrepancies in the prosecution case were duly
F considered by the courts below. [Paras 11 to 14] [913-E-
  H; 914-F-H; 915-A-B]
       2. Having agreed with the findings of the courts
  below that the appellants inflicted fatal injuries on the
  body of the deceased, it is to be ascertained whether or
G not it was a result of pre-meditation and whether the
  conviction of the appellants under Section 302 IPC is
  sustainable. The accused persons were objecting to the
  entry of the bullock cart in their field and before the attack,
  there was a wordy altercation. The totality of the facts and
H circumstances of the case showed that the incident was
DILIP KUMAR MONDAL & ANR. v. STATE OF WEST 909
                 BENGAL
not a premeditated one. The accused had been objecting          A
to the ingress and egress of the bullock cart in their field
and no sooner did the deceased try to enter their field,
than a free fight ensued between the parties. Insofar as
the contention of the prosecution, that the accused were
already armed with deadly weapons to pounce upon the            B
deceased-complainant party, it appears to be not
acceptable as the accused party were proceeding to their
fields for carrying out their agricultural work and,
therefore, it is quite normal for them to possess such
agricultural instruments which are used as weapons in           c
this case. Upon consideration of the entire evidence and
the facts and circumstances of the case, there was no
premeditation on the part of the appellants and the
incident was a sudden fight. (Paras 18, 23] (916-C-E; 919-
F-H; 920-A-B]                                                   D
     3. In order to invoke Exception 4 to Section 300 IPC,
it must be f1,1rther shown that the offender has not taken
undue advantage or acted in a cruel or unusual manner.
The appellants are said to have inflicted injuries with
henso and dau. A perusal of post-mortem certificate             E
showed that the deceased sustained one incised injury
on the back which has caused injury to scapula and
spinal cord and another incised wound over the back just
below the right scapula causing injury to the right lung
and pleura. PW-10 was discharged from the hospital after        F
giving first aid treatment indicating thereby that the injury
was not grievous. Considering the injuries, it cannot- be
said that the accused had taken undue advantage of the
situation. The incident was not premeditated and the
scuffle between the parties led to the causing of injuries      G
to the deceased and considering the circumstances of
the case, the offence would fall under Section 300 IPC
Exception 4 and the conviction of the appellants is
modified and altered under Section 304 Part I IPC. [Para
24] (920-C-F]                                                   H
    910       SUPREME COURT REPORTS             (2015) 1 S.C.R.


A       Sridhar Bhuyan v. State of Orissa (2004) 11 SCC 395 :
    2004 (3) Suppl. SCR 395 - relied on.
                         Case Law Reference:
          2004 (3 ) Suppl. SCR 395     Relied on        Para 22
B
        CRIMINAL·APPELLATE JURISDICTION: Crimina! Appeal
    No. 82 of 2015.

         From the Judgment and Order dated 13.02.2012 of the
    Division Bench of Calcutta High Court in C.R.A. No. 747 of
c   2008.

         Pijush K. Roy, Ms. Kakali Roy, Mithilesh Kumar Singh for
    the Appellants.

          Shagun Matta (For Anip Sachthey) for the Respondent.
D
          The Judgment of the Court was delivered by

          R. BANUMATHI, J. 1. Leave granted.

E      2. This appeal arises out of the judgment of the Calcutta
  High Court dated 13.2.2012 passed in C.R.A. No.747/2008,
  in and by which, the High Court confirmed the conviction of the
  appellants under Section 302/34 IPC and the sentence of life
  imprisonment imposed upon them and set aside the conviction
F of the appellants under Section 326 IPC.

       3. Briefly stated case of the prosecution is as under:-
  Complainant - PW 3 -Fatik Chandra Debnath is the brother
  of the deceased Nripen Debnath. On 22.11.1998 at about
  10.00 A.M. the complainant along with his two sons namely,
G PW-11 Ranjit Debnath and PW-12 Santosh Debnath was doing
  agricultural work in his field-collecting harvested paddy crops
  and tying the same. Deceased Nripen Debnath, brother of the
  complainant and his son Nikhil Debnath (PW-10) proceeded
  towards the field in a bullock cart for bringing the bundles of
H harvested paddy crops. The only way to reach their field was
DILIP KUMAR MONDAL & ANR. v. STATE OF WEST 911
          BENGAL [R. BANUMATHI, J.]

through the field belonging to the accused persons and as A
soon as the bullock cart touched the border of the field of the
accused, the accused took exception to the same, which
resulted in a wordy altercation between the parties and injuries
were inflicted by the appellants on the deceased and
witnesses. Appellant Dinesh inflicted injuries in the abdomen B
of Nripen Debnath with the pasli and the appellant Dilip
attacked him with a dau. The other two accused also assaulted
the deceased. When Nikhil Debnath (PW-10) tried to rescue
his father, he was also badly beaten by the accused. On seeing
the incident, PW-3 -Fatik Chandra Debnath rushed to the place c
of incident and raised alarm. In the process, PW 11-Ranjit
Debnath and PW-12-Santosh Debnath also sustained injuries.
On hearing hues and cries, the villagers gathered at the place
and the accused fled away.

    4. All the four injured persons were immediately taken to   D
Godhanpara Hospital wherein PW-10-Nikhil Debnath and PW-
11 -Ranjit Debnath were discharged after first aid. As the
condition of Nripen Debnath and PW-12 Santosh Debnath was
precarious, they were referred to N.G. Hospital, Berhampore.
Nripen Debnath succumbed to the injuries on his way to the      E
hospital.

     5. Law was set in motion by PW-3 Fatik Chandra Debnath
by lodging a complaint at Police Station Raninagar, District
Murshidabad. On the basis of the complaint, a case was F
registered under Section 302/34 IPC and 326/34 IPC against
the accused persons. PW-14 Dr. Gobinda Banerjee conducted
autopsy on the body of Nripen Debnath and PW-14 opined that
the death was due to shock and haemorrhage and issued Ex
P6-Post mortem certificate. After completion of due G
investigation, chargesheet was filed against the appellants and
two other accused under the above stated provisions. To prove
the charges against the accused, prosecution has examined
16 witnesses and exhibited a number of documents and
material objects. The accused were questioned under Section H
    912 ·     SUPREME COURT REPORTS                   [2015] 1 S.C.R.


A   313 Cr.P.C. about the incriminating evidence and the
    circumstances but the accused denied all of them and pleaded
    innocence. The accused have stated that they have been falsely
    implicated due to political rivalry and they have been victimized

B
         6. Upon consideration of oral and documentary evidence,
    the Sessions Court convicted the appellants under Sections
    302/34 IPC and 326/34 IPC and sentenced them to undergo
    imprisonment for life and to pay a fine of Rs.2000/- with default
    clause. For the offence under Section 326 IPC, the accused
C   were sentenced to undergo imprisonment for three years and
    to pay a fine of Rs.1000/- with default clause. Accused Arjun
    Mondal was acquitted of all the charges giving him the benefit
    of doubt. Fourth accused-Vipad died pending trial. Aggrieved
    by the conviction, the appellants preferred appeal before the
D   High Court of Calcutta which by the impugned judgment has
    confirmed the conviction of the appellants under Section 302/
    34 IPC and the sentence of life imprisonment imposed on them.
    Their conviction under Section 326 IPC was set aside. Being
    aggrieved, the appellants have preferred this appeal by special
E   leave.

         7. Assailing the conviction of the appellants, learned
    counsel for the appellants contended that the testimony of the
    witnesses suffered from serious contradictions and
F   inconsistencies and they could not be said to be reliable. It was
    submitted that the appellants had been falsely implicated in the
    case on account of political rivalry, which aspect was not
    properly considered by the courts below.

         8. Contrariwise, learned counsel appearing for the
G   respondent-State contended that there is no material
    contradiction in the testimony of the witnesses affecting their
    veracity. It was contended that the accused were already armed
    with deadly weapons with which the appellants inflicted injuries
    on the deceased and the complainant party. It was submitted
H   that after inflicting fatal injuries on the deceased, appellant Dilip
                                                     •
 DILIP KUMAR MONDAL & ANR. v. STATE OF WEST 913
           BENGAL [R. BANUMATHI, J.]

rushed to hospital, just only to evade arrest. It was urged that A
there is no political rivalry between the parties and courts below
rightly negatived the defence put forth by the appellants.

     9. We have given our thoughtful consideration to the
contentions urged by the counsel for the parties and perused
                                                                   8
the impugned judgment and the materials on record.

     10. PW-3-Fatik Chandra Debnath, brother of the
deceased, has deposed that at the relevant time he was busy
in the field with his sons in collecting the harvested paddy and
he witnessed the incident from his field which is adjacent to the C
place of incident. PW-3 stated that the appellants assaulted his
brother Nripen Debnath in the abdomen and when his nephew
Nikhil, PW-3 rushed with his son$ PW-11 Ranjit Debnath and
PW-12 Santosh Debnath to rescue his brother, his sons PWs
11 and 12 were also assaulted. PW-3 being the eye-witness, D
his evidence was relied upon as creditworthy by the courts
below.

     11. Evidence of PW-3-Fatik Chandra Debnath is assailed
contending that in the complaint lodged by him, it is not E
mentioned that Dilip caused hurt to Nripen Debnath with dau
and the only fact that is mentioned there is that appellant Dinesh
chopped the stomach of the deceased and other accused also
joined in the assault. Additionally, it was submitted that PW-3
had rushed to the place of occurrence only after the fight had
started, so there arose doubt as to the veracity of PW-3. Insofar F
as the contention that the details of attack with dau are not
mentioned in the complaint, by and large, people cannot be
expected to have a photographic memory of the incident to
recall the minute details of the incident. Immediately after the
incident, PW-3 must have been under shock and in such G
disturbed mental condition, While he was narrating the incident
to Pradhan of village to reduce the complaint into writing, PW-
3 might have omitted to mention that Dilip caused hurt to Nripen
Debnath with dau. Such omission, in our considered view, does
not affect the credibility of evidence of PW-3. Insofar as the plea H
    914      SUPREME COURT REPORTS                 [2015) 1 S.C.R.

A that PW-3 could not have witnessed the assault as he reached
  the scene after the fight started is not sustainable for the reason
  that the place of occurrence is just adjacent land within a short
  distance. Obviously, even from his field, PW-3 must have seen
  the attack before he rushed to the rescue of his brother Nripen
B Debnath.
       12. PW-10 Nikhil Debnath son of deceased Nripen
  Debnath has also sustained injuries while he was trying to
  rescue his father and PW-10 had spoken about the incident.
  PW-10 Nikhil Debnath deposed that on 22.11.1998 at about
C 10.00 AM. while he was proceeding with his father on a bullock
  cart towards the field where his uncle PW-3-Fatik Chandra
  Debnath was collecting harvested paddy crops, the accused
  persons who were in their landed property shouted that no one
  could enter the landed property and immediately after their
D entering the land of the accused, the appellants attacked his
  father and inflicted injuries on him and when PW-10 tried to
  rescue his father, they also assaulted him. PW-11 -Ranjit
  Debnath son of PW-3 -Fatik Chandra Debnath who also
  sustained injuries had deposed that the accused threatened the
E deceased as soon as bullock cart entered the land of the
  accused saying "saladarka aj sosana pathabo" which means
  "we will send the rascals to the crematory". PW-11 further stated
  that Nripen Debnath came down from the bullock cart,
  appellant-Dinesh caused injuries with henso and Dilip attacked
F him with a dau and when PW-11-Ranjit Debnath and PW-12-
  Santosh Debnath tried to intervene, the accused (Arjun and
  Bipad) attacked them with a lathi. Evidence of PW-11 amply
  corroborates the evidence of PWs 3 and 10.
        13. Evidence of injured witnesses PWs 10 and 11 lends
G credence to their testimony and their evidence is entitled to
  great weight. Very much convincing ground is essential to
  discard the evidence of the injured witnesses PWs 10 and 11.
  Despite searching cross-examination, nothing substantial was
  elicited from PWs 10 and 11 to discredit their evidence.
H
DILIP KUMAR MONDAL & ANR. v. STATE OF WEST 915
          BENGAL [R. BANUMATHI, J.]

     14. PW-6 Anil Kumar Mondal who was doing agricultural        A
work in his field had also stated that he had heard one jhamela
and when he went to the place of incident, a maramari took
place. PW-6 had spoken about the overt act of each of the
appellants and causing injuries to the deceased and others.
PW-8 Mastoram Debnath labourer who was working in the field       B
of the deceased at that time had also deposed that an
altercation crept up between the parties.

       15. As far as evidence of PW-2-Abul Kasim Sk is
concerned, the courts below have rightly recorded him unworthy C
of credit as he stated that Nripen Debnath was lying dead on
a village road. As pointed out by the courts below, it appears
that PW-2 has just deposed whatever he heard from others.
PW-4 -lntajul Haque, an agricultural labourer had deposed the
incident and the overt act of the appellants in causing hurt to
Nripen and that while PW-10-Nikhil Debnath attempfed to save D
his father, Dilip caused hurt to Nikhil with dau and that all the
accused attacked sons of PW-3 Fatik Chandra Debnath with
bamboo split. During investigation, statement of PW-4 was not
recorded by the investigating officer under Section 161 Cr.P.C.
and the High Court rightly declined to take notice of the evidence E
of PW-4. Likewise, High Court has also rightly rejected the
testimony of PW-5 Karuna Krishna Sarkar who had stated that
he saw the accused running through his house and that he
witnessed the incident from his garden.
                                                                  F
     16. The contradiction pointed out in the evidence of the
witnesses and the discrepancies in the prosecution case were
duly considered by the courts below. The contradictions so
pointed out by the appellants do not create infirmity in the
prosecution case. The core of the prosecution story remains G
the same that Nripen Debnath and his son PW-10 Nikhil
Debnath along with two sons (Ranjit Debnath and Santosh
Debnath) of PW-3 Fatik Chandra Debnath were assaulted by
the accused on their landed property. The defence plea that the
false case has been foisted on the accused due to political
                                                                H
    916       SUPREME COURT REPORTS                   [2015] 1 S.C.R.


A   rivalry is not substantiated by the appellants.

         17. On the evidence of PW-3-Fatik Chandra Debnath,
    injured witnesses PWs-10 to 12 - Nikhil Debnath, Ranjit
    Debnath and Santosh Debnath and other witnesses PWs 6
    and 8, the courts below have recorded concurrent findings of
8
    fact that the appellants have inflicted fatal injuries on the
    deceased Nripen Debnath and the concurrent findings so
    recorded are unassailable.

          18. Having agreed with the findings of the courts below that
C   the appellants inflicted fatal injuries on the body of the
    deceased, it i~ to be ascertained whether or not it was a result
    of pre-meditation and whether the conviction of the appellants
    under Section 302 IPC is sustainable. So far as this question
    is concerned, facts and circumstances of the case and the
D   statement of the witnesses are to be examined. As pointed out
    earlier, the accused persons were objecting to the entry of the
    bullock cart in their field and before the attack, there was a
    wordy altercation. PW-6 Anil Kumar Mondal had also deposed
    that he heard jhamela and when he rushed to the place of
E   offence, he noticed a maramari took place and the appellants
    inflicted injuries on Nripen and PW-10 Nikhil Debnath. PW-10
    son of deceased himself deposed that accused persons were
    guarding their landed property so that no one enters their land
    and as he along with his father Nripen entered their land in their
F   bullock cart, the accused persons restrained them saying "sala
    toder gari jete debo na". PW-11-Ranjit Debnath, another
    injured witness had also spoken that there was fight between
    the parties.

         19. The High Court had referred to the evidence and the
G   defence put forth by the appellants that the incident was a
    sudden fight between the parties. The High Court declined to
    invoke Exception 4 to Section 300 on the grounds that:- (i) the
    defence plea of sudden fight was not clearly put forth by the
    accused during their questioning under Section 313 Cr.P.C.;
H
DILIP KUMAR MONDAL & ANR. v. STATE OF WEST 917
          BENGAL [R. BANUMATHI, J.]
(ii) even assuming that there was a sudden fight, and that four       A
accused persons were injured, there is nothing to suggest that
the complainant party were the aggressors, the injuries must
have been inflicted on the accused only to prevent the
complainant party from entering the field of the complainant
party and in self defence.                                            B

     20. Learned counsel for the appellants contended that the
defence emerging from the evidence is that the appellants
have been objecting to the user of any part of their field for the
purpose of ingress and egress of the bullock cart and inspite         C
thereof the complainant party armed with deadly weapons tried
to pass their bullock cart through their field as a result whereof,
a free fight ensued in which the appellants and two other
accused persons sustained injuries and while so the High Court
failed to appreciate that there was no premeditation and the
entire incident was due to a sudden fight and the High Court          D
ought to have invoked Exception 4 to Section 300 IPC.

     21. Exception 4 to Section 300 IPC reads as under:-

     "Exception 4. - Culpable homicide is not murder if it is         E
     committed without premeditation in a sudden fight in the
     heat of passion upon a sudden quarrel and without the
     offender having taken undue advantage or acted in a cruel
     or unusual manner."

    In order to invoke the applicability of Exception 4 to Section    F
300 IPC, the following conditions are to be satisfied namely:

      (i)     that the incident happened without premeditation;

      (ii)    in a sudden fight;
                                                                      G
      (iii)   in the heat of passion;

      (iv)    upon a sudden quarrel and

      (v)     without the offender having taken undue advantage       H
    918       SUPREME COURT REPORTS                 [2015] 1 S.C.R.

A                or acted in a cruel or unusual manner."
        22. This Court in Sridhar Bhuyan vs. State of Orissa
    (2004) 11 sec 395, reaffirmed the same and held as under:-
          "For bringing in operation of Exception 4 to Section 300
B         IPC, it has to be established that the act was committed
          without premeditation, in a sudden fight in the heat of
          passion upon a sudden quarrel without the offender having
          taken undue advantage and not having acted in a cruel or
          unusual manner.
c
          The fourth exception of Section 300 IPC covers acts done
          in a sudden fight. The said exception deals with a case of
          prosecution not covered by the first exception, after which
          its place would have been more appropriate. The
D         exception is founded upon the same principle, for in both
          there is absence of premeditation. But, while in the case
          of Exception 1 there is total deprivation of self-control, in
          case of Exception 4, there is only that heat of passion
          which clouds men's sober reason and urges them to
          deeds which they would not otherwise do. There is
E
          provocation in Exception 4 as in Exception 1; but the injury
          done is not the direct consequence of that provocation. In
          fact Exception 4 deals with cases in which notwithstanding
          that a blow may have been struck, or some provocation
          given in the origin of the dispute or in whatever way the
F         quarrel may have originated, yet the subsequent conduct
          of both parties puts them in respect of guilt upon equal
          footing. A "sudden fight" implies mutual provocation and
          blows on each side. The homicide committed is then
          clearly not traceable to unilateral provocation, nor in such.
G         cases could the whole blame be placed on one side. For
          if it were so, the exception more appropriately applicable
          would be Exception 1. There is no previous deliberation
          or determination to fight. A fight suddenly takes place, for
          which both parties are more or less to be blamed. It may
H         be that one of them starts it, but if the other had not
DILIP KUMAR MONDAL & ANR. v. STATE OF WEST 919
          BENGAL [R. BANUMATHI, J.]
    aggravated it by his own conduct it would not have taken A
    the serious turn it did. There is then mutual provocation and
    aggravation, and it is difficult to apportion the share of
    blame which attaches to each fighter. The help of
    Exception 4 can be invoked if death is caused: (a) without
    premeditation; (b) in a sudden fight; (c) without the B
    offender's having taken undue advantage or acted in a
    cruel or unusual manner; and (d) the fight must have been
    with the person killed. To bring a case within Exception 4
    all the ingredients mentioned in it must be found. It is to
    be noted that the "fight" occurring in Exception 4 to Section c
    300 IPC is not defined in IPC. It takes two to make a fight.
    Heat of passion requires that there must be no time for the
    passions to cool down and in this case, the parties have
    worked themselves into a fury on account of the verbal
    altercation in the beginning. A fight is a combat between
                                                                  0
    two and more persons whether with or without weapons.
     It is not possible to enunciate any general rule as to what
    shall be deemed to be a sudden quarrel. It is a question
    of fact and whether a quarrel is sudden or not must
     necessarily depend upon the proved facts of each case.
     For the application of Exception 4, it is not sufficient to E
    show that there was a sudden quarrel and there was no
    premeditation. It must further be shown that the offender
    has not taken undue advantage or acted in a cruel or
    unusual manner. The expression "undue advantage" as
     used in the provision means "unfair advantage".              F

     23. Considering the totality of the facts and circumstances
of the case, we are unable to agree with the view taken by the
courts below that the incident was a premeditated one. As
discussed earlier, the accused had been objecting to the G
ingress and egress of the bullock cart in their field and no
sooner did the deceased try to enter their field, than a free fight
ensued between the parties. Insofar as the contention of the
prosecution, that the accused were already armed with deadly
weapons to pounce upon the deceased-complainant party, it H
    920        SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A   appears to be not acceptable as the accused party were
    proceeding to their fields for carrying out their agricultural work
    and, therefore, it is quite normal for them to possess such
    agricultural instruments which are used as weapons in this
    case. Upon consideration of the entire evidence and the facts
s   and circumstances of the case, in our view, there was no
    premeditation on the part of the appellants and the incident was
    a sudden fight.

          24. In order to invoke Exception 4 to Section 300 IPC, it
    must be further shown that the offender has not taken undue
C   advantage or acted in a cruel or unusual manner. The appellants
    are said to have inflicted injuries with henso and dau. By a
    perusal of Ext. P6 post-mortem certificate, it is seen that the
    deceased sustained one incised injury on the back which has
    caused injury to scapula and spinal cord and another incised
D   wound over the back just below the right scapula causing injury
    to the right lung and pleura. Insofar as the injuries caused to
    Ranjit Debnath and Santosh Debnath, there is no sufficient
    evidence as to the alleged injuries caused to them. As far as
    PW-10-Nikhil Debnath is concerned, he was discharged from
E   the hospital after giving first aid treatment indicating thereby that
    the injury was not grievous. Considering the injuries, in our view,
    it 'cannot be said that the accused have taken undue advantage
    of the situation. The incident was not premeditated and the
    scuffle between the parties led to the causing of injuries to the
F   deceased Nripen Debnath and considering the circumstances
    of the case, in our view, the offence would fall under Section
    300 IPC Exception 4 and the conviction of the appellants is to
    be modified and altered under Section 304 Part I IPC.

         25. In the result, the conviction of the appellants under
G   Section 302/34 IPC is altered to one under Section 304 Part I
    IPC and the appellants are sentenced to undergo imprisonment
    for a period of ten years. The appeal stands allowed to the
    above extent.

H   Devika Gujral                                     Appeal disposed of.