NANAK RAMversusSTATE OF RAJASTHAN

                        [2014] 3 S.C.R. 326


A                          NANAK RAM
                                 V.
                     STATE OF RAJASTHAN
             (Criminal Appeal No. 1985 of 201 O etc.)
                       FEBRUARY 26, 2014
B
            [T.S. THAKUR AND C. NAGAPPAN, JJ.]

        PENAL CODE, 1860:

c        s. 300, Exception 4 and s. 304 (part I) -Dispute between
  rival groups over a land dispute, turned into sudden fight
  resulting into death of one person on complainant's side -
  High Court converting conviction u/s 302 to one uls 304(Part
  II) .. Held: Out of 9 injuries on deceased only one was held to
0 be grievious in nature which was sufficient in ordinary course
  of nature to cause the death - In heat of passion upon a
  sudden quarrel accused caused injuries on deceased - The
  act was done by accused person with intention of causing such
  bodily injury as was likely to cause the death - Offence will
E squarely fall within s.304 (Part I) - Conviction and sentence
  u/s 304 (Part II) set aside and appellants convicted uls 304
  (Part I) and sentenced to 7 years RI each - Appellants are not
  entitled to be released on probation - Probation of Offenders
  Act, 1958.
F      The appellant in Crl. A. No. 1985 of 2010 and the
  appellants in Crl. A. No. 342 of 2011 along with four others
  were stated to have caused injuries to victim party over
  a land dispute. One of the victims died on the spot and
  another received injuries. The appellant in Crl. A. No. 1985
G of 2010 absconded whereas the others were prosecuted
  and, except one of them, were convicted and sentenced
  to various terms of imprisonment. One of the appellant in
  Crl. A. No. 342 of 2011 and another were convicted and
  sentenced u/s 302 IPC. Others were convicted and
H                               326
       NANAK RAM v. STATE OF RAJASTHAN                    327

sentenced to five years RI u/s 304 (part II) IPC. All the five   A
accused persons were also sentenced to various terms
of imprisonment for other offences. The appellant in Crl.
A. No. 1985 of 2010, when apprehended, was tried and
was convicted and sentenced u/s 302 IPC. He was also
sentenced to various terms of imprisonment for other             8
offences. During the pendency of appeal before the High
Court, four of the accused died and their appeals abated.
The High Court converted the conviction u/s 302 to one
u/s 304(part II) IPC and sentenced the accused persons
to 5 years RI. The conviction and sentences under various        C
other sections were maintained. The appeal of the State
against complete acquittal of one of the accused and for
enhancement of sentence of other accused was
dismissed. The surviving accused filed the appeals
challenging their conviction whereas the State filed the
appeal for enhancement of their sentence.                        0

    Disposing of the appeals, the Court
     HELD: 1.1 PW 7, the injured witness and PW11 are
brothers of the deceased and PW6 is their sister. PW 2 is
an independent witness. All these persons witnessed the          E
occurrence. The testimonies of PW2, PW6, and PW11 are
natural cogent and in all material particulars corroborated
the testimony of PW7. Accepting their testimonies it is
clear that during the occurrence all the seven accused as
members of unlawful assembly inflicted injuries with their       F
weapons on the deceased and PW 7. [para 13] [337-A, F,
G-H]
     1.2 That the deceased died of homicidal violence is
established by the medical evidence adduced in the case.
There is no doubt that the deceased died of injuries G
sustained during the occurrence. It is further relevant to
note that the doctor (PW9) examined PW7 immediately
after the occurrence and found 11 injuries on him. There
is no delay in registering case and there is no flaw in the
investigation. [para 14 and 15] [338-A, C, F]               H
    328      SUPREME COURT REPORTS            [2014] 3 S.C.R.

A      1.3 It is true that the accused party had land dispute
  with the victim party. The evidence shows that the
  accused party was desirous to get the subject I.and to
  themselves and were taking legal steps to achieve it. On
  coming to know of the fencing put by the deceased and
8 his brothers, they were annoyed and went there to
  remove the fencing. While they were dismantling the
  fencing, the deceased and his brothers came there and
  objected to it and a sudden quarrel erupted. A fight
  suddenly takes place for which both parties are more or
C less to be blamed and it is a combat whether with or
  without weapons. It may be that one of them starts it, but
  if the other had not aggravated it by his own conduct, it
  would not have taken the serious turn it did. Heat of
  passion requires that there must be no time for the
  passions to cool down and in this case the parties have
0 worked themselves into a fury on account of the verbal
  altercation in the beginning. Out of the 9 injuries, only
  injury no.1 was held to be of grievous nature, which was
  sufficient in the ordinary course of nature to cause death
  of the deceased. This goes to show that in the heat of
E passion upon a sudden quarrel the accused persons
  had caused injuries on the deceased. That being so,
  Exception 4 to s. 300 IPC is applicable. [para 16-17) [338-
  G; 339-B-F]

F         Ghapoo Yadav & Ors. vs. State of M.P. 2003 (2)· SCR
    69   =(2003) 3 sec 528, relied on.
       1.5 Looking at the nature of injuries sustained by the
  deceased and the circumstances, the conclusion is
  irresistible that the death was caused by the acts of the
G accused done with the intention of causing such bodily
  injury as is likely to cause death and, therefore, the
  offence would squarely come within s. 304 (part I) IPC
  and imposition of 7 years rigorous imprisonment on each
  of the appellants would meet the ends of justice.
H
      NANAK RAM v. STATE OF RAJASTHAN                   329


Accordingly, the conviction of the appellants u/s 304 (Part A
II) IPC read with s. 149 IPC and the sentences of 5 years
rigorous imprisonment each are set aside and instead
they are convicted u/s 304 (Part I) read withs. 149 IPC and
sentenced to undergo seven years rigorous
imprisonment each. The other conviction and sentences B
imposed on the appellants are sustained. They are not
entitled for release on probation. [para 18-20] [339-G-H;
340-B, D-E, CJ

     State of Karnataka VS. Muddappa (1999) 5 sec 732 and
Eliamma and Another vs. State ofKamataka 2009 (3) SCR C
    =
135 (2009) 11 SCC 42; Mahesh Balmiki alias Munna vs.
State of M.P. (2000)1 SCC 319; and Arun Nivalaji More vs.
State of Maharashtra 2006 (4) Suppl. SCR 301 = (2006) 12
sec 613 • cited.
                                                          D
                     Case Law Reference:
    (1999) 5 sec 732               cited           para 11
    2009 (3) SCR 135              cited            para 11
    (2000)1 sec 319                cited           para 12      E
    2006 (4) Suppl. SCR 301        cited           para 12
    2003 (2) SCR 69                relied on       para 17
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1985 of 2010.                                               F
    From the Judgment and Order dated 19.01.201 O of the
High Court of Judicature for Rajasthan at Jodhpur in Criminal
Appeal No. 314 of 1990.
                              WITH                              G
Criminal Appeal No. 1990, 1991, 1992 of 2010.

and Criminal Appeal No. 342 of 2011.

    Mahabir Singh, Nikhil Jain, Gagandeep Sharma, Preeti
Singh, Rakesh Dahiya for the Appellant.                         H
    330      SUPREME COURT REPORTS                [2014] 3 S.C.R.


A         Sonia Mathur, Pragati Neekhra for the Respondent.

          The Judgment of the Court was delivered by

         C. NAGAPPAN, J. 1. This judgment shall dispose of three
    appeals in Criminal appeal Nos.1985 of 2010 filed by the
B   appellant Nanak Ram/Accused and Criminal Appeal No.342
    of 2011 filed by appellants/Accused Mohan Ram and Surja
    Ram against their conviction and sentence, and Criminal
    Appeal Nos. 1991 of 2010, 1990 of 2010 and Criminal Appeal
    No.1992 of 2010 filed by the State of Rajasthan for the
C   enhancement of the sentence against the above mentioned
    accused, respectively.

        2. The case of the prosecution in brief is as follows : PW
  7 Shera Ram is the younger brother of deceased Shivji Ram
0 and they had obtained land from Gram Panchayat towards the
  western side of the village and obtained Pattas for the said
   land. Accused Shera Ram and accused Chuna Ram are real
  brothers while accused Surja Ram and accused Mohan Ram
  are sons of accused Sadula Ram. Accused Shera Ram and
E Sadula Ram told Shivji Ram and Shera Ram that they will not
  allow them to take the land and will snatch it from them. Two
  months prior to occurrence Shivji Ram and Shera Ram erected
  fencing around their land whereupon the accused Shera Ram
  and other accused were seriously annoyed over the same. On
  the occurrence day i.e. on 29.5.1983 at 10.30 a.m. Shivji Ram
F and both his younger brothers were repairing/re-erecting the
  fencing in their land, accused persons Shera Ram, Sadula Ram
  and his sons Mohan Ram and Surja Ram, Gordhan Ram,
  Nanak Ram and Chuna Ram, all duly armed entered into Bara
  from south side and started dismantling the fence. Shivji Ram
G and his brothers questioned the same by saying that they have
  obtained Patta from the Panchayat. Thereupon Shera Ram and
  Surja Ram simultaneously inflicted Barchhi blow on the head
  of Shivji Ram, as a result of which he fell down and all the
  accused attacked him with their weapons. Shera Ram
H
           NANAK RAM v. STATE OF RAJASTHAN                   331
                   [C. NAGAPPAN, J.]
intervened and accused Mohan Ram inflicted Barchhi blow             A
which landed on the left side of his head and accused Chuna
Ram inflicted the jei blow on his right leg. Then all the accused
started beating whereupon his sister Dhuri came running and
fell upon Shera Ram in order to protect him. PW 11 Balu Ram
and PW 2 Mangi Lal who were present at the occurrence place         B
were threatened by the accused and they got frieghtened and
saw the occurrence standing by the side of the road. After that
all the accused went away. Shivji Ram died on the spot.

      3. Some unknown person gave a telephonic information
about the occurrence to the Police Station Nokha on 29.5.1983       C
and after making Exh.P-54 entry in the Roznamcha PW 13 Attar
Ali Khan went to the occurrence place and found Shivji Ram
lying dead and Shera Ram with injuries and he recorded
Exh.P9 statement of Shera Ram, sent him to Nokha Hospital
for treatment. He forwarded Exh.P9 statement to the Police          D
Station for registering the case and Exh. P55 FIR came to be
registered. He conducted inquest on the body of Shivji Ram
and prepared Exh.P5 'inquest report'. He prepared Exh.P3 site
plan and Exh.P45 site inspection note. He seized blood stained
earth and ordinary earth under Exh. P33 and also seized jeis        E
used by the accused Chuna Ram, Nanak Ram from the
occurrence place and the blood stained wooden jei under Exh.
P34. He also seized the footwear of Shivji Ram viz. Exh.P35
and sent the body for post mortem.
                                                                    F
     4. Dr. Moti Lal Mishra (PW 9) conducted the autopsy on
the body of Shivji Ram and found the following 9 injuries:
      i)      An incised wound of 6-%" x %"and deep upto brain
              on the head,
                                                                    G
      ii)     a punctured wound of 1 x % x % cm on the left knee
              joint deep to the bone;
      iii)    multiple contusion of 1 cm each incised on the left
              elbow joint;
                                                                    H
    332          SUPREME COURT REPORTS                  [2014] 3 S.C.R.

A         iv)      an abrasion 1 x Yi cm on the left ring finger dorsally;

          v)       a contusion of 4 x 2 cm on the lower half of the left
                   leg anteriorly;

          vi)      swelling 2 x 2 cm on the left leg near the 5th injury;
B
          vii)     a contusion of 1 x 1 cm on the right thigh

          viii)    an abrasion 3 x 1 cm on the right knee joint near
                   the ankle joint; and
c         ix)      an abrasion on the right middle finger dorsally.

    He issued Exh. P 33 Post Mortem report by expressing opinion
    that the death has occurred due to destruction of all the
    elements of brain and shock due to excessive bleeding.
D
        5. PW 9 Dr. Moti Lal Mishra examined Shera Ram in the
    Nokha hospital and found the following 11 injuries on him:

          i)       One crushed wound of 4 x 3 cm bone deep on
                   lower half of the left leg interiorly;
E
          ii)      One crushed wound of 1cm x .Sx.5 cm on middle
                   1/3 of the right leg laterally;

          iii)     Contusion of 15 x 1.5 cm on the lower portion of
                   glutal region;
F
          iv)      An abrasion 3 x % cm on the right scapula;
          v)       One crushed wound of 6 x 1 x 1.5 cm on the left
                   side of the head, 7 cm above the left ear,
G         vi)     An abrasion 1cm x 1 cm on the back side of the
                  head;

          vii)     Swelling 4 x 3 cm on the right palm;

H         viii) An abrasion 1 x Yi cm on the left thumb laterally;
       NANAK RAM v. STATE OF RAJASTHAN                    333
               [C. NAGAPPAN, J.]
      ix)   A contusion of 6 x 1 cm on the middle half of the     A
            right thigh medially;

      x)    A contusion of 3 x 1 cm on the right thigh 2 cm
            above the ninth injury and

      xi)   Contusion two in number, one of 4 x 1 cm and          B
            another of 3 x 1 cm on the upper half of the right
            glutal.

He opined that all the above injuries were simple in nature and
issued Exh. P 32 Injury Report.                                   c
       6. After completing investigation challan was filed in the
 Court of Munsif-cum-Judicial Magistrate Nokha aga·inst all the
 accused persons. Accused Nanak Ram was absconding. The
 other accused persons namely Shera Ram, Sadula Ram,
 Chuna Ram, Surja Ram, Mohan Ram and Gordhan Ram were. D
 tried in Sessions Case No.63 of1983 for the alleged offences
 under Section 302, 307, 323 and 324 all read with Section 149
  IPC and also the offence under Section 147 and 148 IPC. The
 prosecution examined 13 witnesses and tendered in evidence
 59 documents. The learned Sessions Judge convicted E
 accused Shera Ram and Surja Ram for the offences under
 Section 302 read with section 149 IPC and sentenced them
 each to undergo imprisonment for life. He also convict~d
 accused persons Sadula Ram, Mohan Ram and Gordhan Ram
 for the offences under Section 304 Part II read with Section 149 F
· 1pc and sentenced them each to undergo five years rigorous
  imprisonment. Besides he convicted accused persons namely
  Surja Ram, Shera Ram, Gordhan Ram and Mohan Ram for the
 offence under Section 148 IPC and sentenced them each to
  undergo six months rigorous imprisonment He also convicted G
 Sadula Ram for the offence under Section 147 IPC and
  sentenced him to undergo 3 months rigorous imprisonment. In
  addition he convicted accused persons Surja Ram, Shera Ram,
  Mohan Ram, Sadula Ram and Gordhan Ram for the offence
                                                                  H
    334      SUPREME COURT REPORTS                 [2014] 3 S.C.R


A   under Sections 323 and 324 read with Section 149 IPC and
    sentenced them each to undergo 6 months rigorous
    imprisonment and directed all the sentences to run concurrently.
    However, he acquitted accused Chuna Ram of the charges.

S        7. All the five convicted accused persons preferred appeal
    in Appeal No.428 of 1984 on the file of High Court of Judicature
    of Rajasthan, at Jodhpur, challenging their conviction and
    sentences. The State of Rajasthan challenged the complete
    acquittal of Chuna Ram and the acquittal of accused persons
    Sadula Ram, Mohan Ram and Gordhan Ram for the offences
C   under Section 302 read with 149 IPC , in Appeal No.106 of
    1985. During the pendency of the appeals four accused
    persons namely Sadula Ram, Gordhan Ram, Shera Ram and
    Chuna Ram died, with the result the appeal preferred against
    them in Appeal No. 106 of 1985 abated and the said appeal
D   continued only as against the accused Mohan Ram. Like wise
    Appeal No.428 of 1984 preferred by the accused persons
    Shera Ram, Sadula Ram, Gordhan Ram also stood abated
    and it continued on behalf of accused Surja Ram and Mohan
    Ram only.
E
          8. The High Court of Rajasthan partly allowed the appeal
    in Appeal No.428 of 1984 filed by the accused Surja Ram by
    setting aside his conviction for the offence under Section 302
    read with Section 149 IPC and instead convicted him under
F   Section 304 Part II read with Section 149 IPC and sentenced
    him to undergo 5 years rigorous imprisonment and the other
    conviction and sentences imposed on him were maintained. At
    the same time it dismissed the appeal in Appeal No.428 of
    1984 preferred by accused Mohan Ram, by confirming the
C   conviction and sentence imposed on him. The High Court also
    dismissed the Appeal No.106 of 1985 preferred by the State
    of Rajasthan against accused Mohan Ram.

         9. The accused Nanak Ram on being apprehended was
    tried in Sessions Case No.24 of 1985 and the learned
H
       NANAK RAM v. STATE OF RAJASTHAN                    335
               [C. NAGAPPAN, J.]
Sessions Judge, Bikaner convicted him for the offence under      A
Section 302 read with Section 149 IPC and sentenced him to
undergo life imprisonment. He also convicted him for the
offence under Section 148 IPC and sentenced him to undergo
six months rigorous imprisonment and further convicted him for
the offence under Section 324 read with Section 149 IPC and      B
sentenced him to undergo one year rigorous imprisonment and
in addition he convicted him for the offence under Section 323
read with Section 149 IPC and sentenced him to undergo three
months rigorous imprisonment and further he convicted him for
the offence under Section 447 IPC and sentenced him to           c
undergo two months rigorous imprisonment and directed all
sentences to run concurrently. Challenging the conviction and
sentence Nanak Ram preferred appeal in Criminal Appeal
No.314 of 1990 on the file of High Court of Judicature at
Rajasthan at Jodhpur and the High Court partly allowed the
                                                                 0
appeal by setting aside the conviction under Section 302 read
with Section 149 IPC and instead convicted him for offence
under Section 304 Part II read with Section 149 IPC and
sentenced him to undergo five years rigorous imprisonment and
maintained all the other convictions and sentences imposed by    E
the Sessions Court.

     10. Challenging their convictions and sentences imposed
by the High Court on them accused Nanak Ram, Mohan Ram
and Surja Ram preferred Criminal Appeal referred to above and
the State of Rajasthan also filed appeals against the above F
accused seeking for enhancement of the sentences imposed
on them. All these appeals were heard together and are being
disposed of by this common judgment.

     11. Mr. Mahabir Singh, learned senior counsel appearing G
for the appellants contended that the occurrence took place
about 30 years ago and accused persons went to the
occurrence place only to remove the fence put up by Shivji Ram
and his brothers and when it was resisted a free fight followed
which was accidental and there was no intention to kill and only
                                                                 H
    336      SUPRE.ME COURT REPORTS                  [2014] 3 S.C.R.


A   one blow on the head of Shivji Ram was fatal and the other
    injuries were only minor injuries, and the Courts below have
    failed to appreciate that there are material improvements and
    infirmities in the prosecution case and the presence of eye
    witnesses is highly doubtful and the conviction of appellants is
B   wholly unwarranted and liable to be set aside. The alternative
    plea of the learned counsel for the appellants was that the
    appellants have undergone three years of their sentence and
    they be granted the benefit of probation under the provision of
    Section 360 of Code of Criminal Procedure as well as under
c   Section 4 of the Probation of Offenders Act, 1958, and in
    support of the submission he relied on the decision of this Court
    in State of Karnataka vs. Muddappa (1999) 5 SCC 732 and
    Eliamma and Another vs. State of Karnataka (2009) 11 SCC
    42.
D         12. Per contra Ms. Sonia Mathur, learned counsel
    appearing for the State of Rajasthan strenuously contended that
    Shivji Ram and his brothers are the Patta holders of the land
    and lease deeds have been executed by the Panchayat in their
    favour and the accused persons having failed in their legal
E   proceedings had decided to attack the brothers and take
    forcible possession of the land and in pursuance of the said
    common object all the seven accused persons duly armed
    forcibly entered the land and inflicted injuries on Shivji Ram with
    barchhi and jei resulting in instantaneous death and also
F   inflicted injuries on his younger brother Shera Ram and the
    alteration made by the High Court on the conviction from
    Section 302 IPC read with Section 149 IPC to one under
    Section 304 Part 11 IPC read with Section 149 IPC is erroneous
    and legally unsustainable. In support of her submissions she
G   relied on the decisions of this Court in Mahesh Balmiki alias
    Munna vs. State of MP. (2000)1 SCC 319 and Arun Nivalaji
    More vs. State of Maharashtra (2006) 12 SCC 613.

        13. The prosecution has examined PW 7 Shera Ram, PW
H   2, Mandi Lal, PW6 Dhuri and PW11 Balu Ram as having
       NANAK RAM v. STATE OF RAJASTHAN                     337
               [C. NAGAPPAN, J.]
witnessed the occurrence. PW7 Shera Ram and PW 11 Balu A
Ram are the younger brothers of deceased Shivji Ram and
PW6 Dhuri is their sister. PW 7 Shera Ram was also injured
during the occurrence and according to him on the occurrence
day namely on 29.5.1983 at 10.30 a.m. Shivji Ram a'nd both
his brothers were repairing/re-erecting the fencing in their Patta B
Land and accused persons Shera Ram, Sadula Ram and his
sons Mohan Ram and Surja Ram, Gordhan Ram, Nanak Ram
and Chuna Ram armed with weapons entered into Bara from
south side and started dismantling the fence and they
questioned the same by saying that they have obtained Patta c
from Panchayat and at that time Shera Ram and Surja Ram
                                                     a
inflicted Barchhi blow on the head of Shivji Ram as result of
which he fell down and all the accused attacked him with their
weapons and when he intervened accused Mohan Ram inflicted
barchhi blow on the left side of his head and accused Chuna 0
Ram inflicted jei blow on his right leg and other accused also
started beating him whereupon his sister Dhuri came running
and fell upon him in order to protect him and the accused
persons also threatened PW 11 Balu Ram and PW2 Mangi Lal
and being frightened they stood by the side of the road and saw E
the occurrence and Shivji Ram died on the spot. PW7 Shera
Ram sustained as many as 11 injuries on his person as a result
of the attack made by all the accused on him at the time of
occurrence. PW 11 Balu Ram was involved in the fencing of
the land along with his brothers and his presence in the
occurrence place cannot doubted. PW 2 Mangi Lal happened F
to be with Shivji Ram in his land and he has witnessed the
occurrence. He is an independent witness. On seeing the
attack made by the accused on her brothers PW 6 Dhuri came
running and tried to protect Shera Ram by falling upon him. The
testimonies of PW2 Mangi Lal, PW6 Dhuri, PW11 Balu Ram G
are natural cogent and in all material particulars corroborated
the testimony of PW7 Shera Ram. Accepting their testimonies
it is clear that during the occurrence all the seven accused as
members of unlawful assembly have inflicted injuries with their
weapons on deceased Shivji Ram and PW 7 Shera Ram.                 H
     338      SUPREME COURT REPORTS                   [2014] 3 s c R.


 A       14. Shivji Ram died of homicidal violence is established
   by the medical evidence adduced in the case. PW9 Dr Moti
   Lal Mishra conducted autopsy on the body of Shivjt Ram and
   found on the head an incised wound of 6%'' x W' deep upto
   brain and on internal examination the destruction of the
 B elements of the brain. He also found eight other injuries on the
   other parts of the body. He issued Exh. P33 post mortem report
   and expressed opinion that the death has occurred due to
   destruction of the elements of brain and shock due to excessive
   bleeding. In the oral testimony PW9 Dr. Moti Lal Mishra has
 c categorically stated that injury No.1 found on the head was itself
   sufficient to cause death. There is no doubt that Shivji Ram died
   of injuries sustained during the occurrence. It is further relevant
   to note that PW9 Dr. Moti Lal Mishra examined PW7 Shera
   Ram immediately after the occurrence in Nokha hospital and
 D found 11 injuries on him. Ex.P .32 is the injury report issued by
   him mentioning the injuries. According to him all the injuries are
   simple in nature.

         15. Telephonic information about the occurrence was given
   to Nokha Police Station by some unknown person on 29.5.1983
 E itself and PW13 Attar Ali Khan after making Exh.P54 entry in
   the Roznamcha, immediately went to the occurrence place and
   found Shivji Ram lying dead and Shera Ram with injuries. He
   recorded Exh.P9 statement of Shera Ram and sent him to
   Nokha hospital for treatment and forwarded the statement to
 F the Police Station for registering the case Exh.P55 is the First
   Information Report. He also seized jeis used by the accused
   from the occurrence place under Exh.P34 Mazhar. There is no
   delay in registering case and there is no flaw in the investigation.
 G        16. It is true that the accused party had land dispute with
     the victim par1y. The Collector ordered conversion of subject
     land into abadi and on the applications made by Shivji Ram
     and his two brothers, Pattas were issued as evident from P12,
     P16, P17, P20, P21 and P24. Accused Bhera Ram preferred
     appeals against the grant of Patta to Panchayat Samiti at the
.H
       NANAK RAM v. STATE OF RAJASTHAN                    339
               (C. NAGAPPAN, J.]
first instance and they came to be dismissed and the revision A
preferred before the Collector was pending. PW8 Sarpanch
Dhura Ram and PW5 record keeper Hanuman Das have stated
so. Thus the evidence shows that the accused party was
desirous to get the subject land to themselves and were taking
legal steps to achieve it. On coming to know of the fencing put B
by Shivji Ram and his brothers they were an1 :Jyed and went
there to remove the fencing. While they were dismantling the
fencing, Shivji Ram and his brothers came there and objected
to it by saying that they have obtained Patta and a sudden
quarrel erupted.                                                c
      17. A fight suddenly takes place for which both parties are
more or less to be blamed and it is a combat whether with or
without weapons. It may be that one of them starts it, but if the
other had not aggravated it by his own conduct, it would not
have taken the serious turn it did. Heat of passion requires that D
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. Out of the 9 injuries,
only injury no.1 was held to be of grievous nature, which was
sufficient in the ordinary course of nature to cause death of the E
deceased. The assaults were made at random. Even the
previous altercations were verbal and not physical. The earlier
disputes over land do not appear to have assumed the
characteristics of physical combat. This goes to show that in
the heat of passion upon a sudden quarrel the accused persons F
had caused injuries on the deceased. That being so the
Exception 4 to Section 300 IPC is applicable. The fact situation
bears great similarity to that in Ghapoo Yadav & Ors. vs. State
of M.P. (2003) 3 sec 528.

      18. Looking at the nature of injuries sustained by the G
deceased and the circumstances as enumerated above the
conclusion is irresistible that the death was caused by the acts
of the accused done with the intention of causing such bodily
injury as is likely to cause death and therefore the offence would
squarely come within the first part of Section 304 IPC and the H
    340     SUPREME COURT REPORTS                  [2014] 3 S.C.R.

A   appellants would be liable to be convicted for the said offence.
    The conviction of the appellants/accused under Section 304
    Part II read with Section 149 IPC by the High Court is liable to
    be set aside.

8      19. We are of the considered view that imposition of 7
  years rigorous imprisonment on each of the appellants for the
  conviction under Section 304 Part I IPC would meet the ends
  of justice. We sustain the other conviction and sentences
  imposed on the appellants. We are also of the view that the
C appellants are not entitled for release on probation.

       20. In the result Criminal Appeal No.1990 of 2010, 1991
  of 2010 and 1992 of 2010 preferred by the State of Rajasthan
  against the accused persons Nanak Ram, Mohan Ram and
  Surja Ram are partly allowed and their conviction for the offence
D under Section 304 Part II IPC read with Section 149 IPC and
  the sentences of 5 years rigorous imprisonment each are set
  aside and instead they are convicted for the offence under
  Section 304 Part I read with Section 149 IPC and sentenced
  to undergo seven years rigorous imprisonment each. All other
E convictions and sentences imposed on them bi' the High Court
  are maintained. Criminal Appeal No.19!35 of 2010 and 342 of
  2011 are dismissed.

    R.P.                                     Appeals disposed of.