Holding

The incident was a sudden fight in the heat of passion, invoking Exception 4 to s.300 IPC; thus Sunil Kumar and Ved Prakash are guilty of culpable homicide not amounting to murder (s.304(1)/34) and Ram Karan is acquitted due to reasonable doubt.

Summary

Ram Karan and his sons were involved in a violent altercation arising from a land encroachment dispute. During a sudden quarrel, knives were used, resulting in the deaths of Prakash Chandra, his son Umesh Chandra, and Ram Karan's son Chhotey Lal, and injuries to Dinesh Chandra. The trial court convicted all accused of murder under s.302 IPC read with s.34 and attempted murder under s.307 IPC. On appeal, the Supreme Court examined whether the incident fell within Exception 4 to s.300 IPC, converting the murder charge to culpable homicide not amounting to murder for Sunil Kumar and Ved Prakash, and considered the participation of the elderly Ram Karan. The Court held that the fight was a sudden, heat‑of‑passion incident, invoking Exception 4, and that reasonable doubt existed regarding Ram Karan's active role. Consequently, Ram Karan was acquitted, while Sunil Kumar and Ved Prakash were convicted under s.304(1)/34 IPC and sentenced to seven years rigorous imprisonment; their s.307/34 convictions were upheld.

Issues considered

The applicability of Exception 4 to section 300 IPC to the facts of the case, i.e., whether the offence constitutes murder or culpable homicide not amounting to murder.
Whether Ram Karan can be held liable as an aggressor and convicted under s.302/34 and s.307/34 IPC, considering his age and the evidence of his participation.
The appropriate sentencing for the offences under the applicable sections of the IPC.

Legislation cited

Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 300, s. 302, s. 304(1), s. 307, s. 34

Subjects

murderculpable homicide not amounting to murdersection 300 exceptionbenefit of doubtsentencingself-defencecommon intentionIndian Penal Code

Judgment

3~5 A
RAM KARAN & ORS.
v.
STATE OF UTTAR PRADESH
B
Marc~ 4, 1982

[S. MURTAZA FAZAL ALI, D.A. DESAI AND
A. VARADARAJAN, JJ,)
Sentencing-lmpqsition of appropriate Jentence, under stction 302 or 304
c
'.,ii
depends on the nature of offence ofculpable homicide-Evidence showing homicide
by both parties in a CiVil Suit in a sudden fight in the heat of passion upon a
quarrel-Appropriate sentence would be olie under sections 304(1)/34 Indian Penal
Code and not under sections 302/34 Indian Penal Code-Probability of culpability
not proved by legal evidence- Benefit of doubt must ensue in such cases.

The five accused Ram Karan, his sons Sunil Kumar, Ved Prakash, Anil D
Kumar, Salish Kumar and deceased son Chhoteylal filed a Civil Suit 34 of 1967
against the decased Prakash Chandra, his brother Oopi Chandra and one Krishan.
Devi,. alleging that while constructing their new house Prakash Chandra had
encroached upon a portion of their land. In that suit appellant Ram Karan got
Commissioners appointed by the court on five or six occasions for taking
measurements of the properties with the object of proving his case of encroach.. -
ment by Prakash Chandra,. the deceased. But these Commissioners' reports E
were set aside on the objection raised by Prakash Chandra and the other
defendants. The last Advocate Commissioner Mr. Mathur (C.W. I) visited the
spot on 6""9-1970, the day of occurrence, accompanied by Mr. Zafar Hussain
(C.W. 2) who appeared for decoased Prakash Chandra and Mr. Mahesh Chandra
(C.W. 3) who appeared for Ram Karan. After the completion of the survey
work and measurements at about 1 P.M. when all the three lawyers were standing
and talking in front of the house of the appellants deceased Prakash Chandra F
and Umesh Chandra came there to talk to the Commissioner, which. interference
was not liked by the appollants. This resulted in a sudden quarrel, exchange of
hot words later followed by assault with knife etc., on the appellants which,
according to prosecution, was in the exercise of right of self-defence by the
prosecution party, particulary Dinesh Chandra (P.W. 11). On the side of the
appellants Ram Karan's son Chhotey' Lal (accused) died and on the side of the
prosecution Prakash Chandra and his son Umesh Chandra died and Dinesh G
Chandra (P.W. 11) was grievously injured. All the five accused were tried and
convicted by the Sessions Judge for offences under sections 302/149 J.P.C.
(two counts) and 307/149 I.P.C. and were sentenced to imprisonment
for life and rigorous im.Pi'isonment for four years respectively. Ram Karan
was also convicted under sectioD. 147 and sentenced to undergo rigorous
imprisonment for one year and his four sons were convicted under section H
148 and sentenced to rigorous imprisonment for two years. In appeal the
396 iUPRBME COURT Ri!i>oilTs [I982j 3 s.c.a.
A High Court acquitted Anil Kumar and Satish Kumar, set aside the +
conviction and sentence under sections 147 and 148 l.P.C. in respect of the rest
and confiribed {a) their sentence of life imprisonment by alterting the conviction
one under sections 302/34 I.P .C. and (b) their sentence of four years rigorous
imprisonment to one under sections 307/34 I.P.C. Hence the appeal by special
leave by Ram Karan and bis two sons.

B Acquitting Ram Karan and allowing the appeal of the other two Jn part,
the Court

HELD : Having regard to the age of the appellant Ram Karan who
was about 70 years old at the time of the occurrence, there is a reasonable doubt
as to whether he would have caught ~hold of the young man Dinesh Chandra /"" -.-A--:~
(P.W. 11) by his waist and whether he would have asked all hi< sons to attack
c and kill Prakash Chandra and his sons. The appellant Ram Karan is entitled
to be set at liberty. [409 D·El

BY MAJORITY

Per Faza/ Ali, J. (and on behalf of D.A. Desai, J.)

1:1. Exception 4 to section 300 I.P.C. provides that culpable homicide
D is not murder if it is committed without pre-meditation in a lsudden fight in the
beat of passion upon a sudden qUarrel and without the offenders having taken
undue advantage or acted in_a cruel or unusual manner. {399 D]

l :2. · In this case, the incident occurred upoD. a sudden quarrel a1;1d no
one took undue advantage or acted in a cruel or unusual manner on either side.
Prakash Chandra and Umesh Chandra on the side of the prosecution died and
Chhotey Lal on the side of the accused died and each of them met a homicidal
E death. Therefore exception 4 to section 300 Indian Penal Code is clearly
attracted and the offence of murder would be reduced to culpable homicide in
respect of Sushi! Kumar and Ved Prakash and, therefore, they would be guilty
of committing on offence-under section 304(1)/34 I.P.C. A sentence of rigorous
imprit_onment for seven years would be appropriate ; conviction and sentence
under sections 307/34 I.P.C. being in order would run con currently.
[399 B-C, G-H, 400 A]

Per Varadarajan, J. (contra).

Sunil Kumar and Ved Prakash were the- aggressors and they have been
rightly convicted under section 302 read with section 34 I.P.C. for the offence of
murder of Prakash Chandra ~and Umesh Chandra and under sections 307/34
I.P.C. with reference to P. W. 11. Neither Exception 2 nor Exception 4 to section
G 300 l.P.C. would apply to the facts· of the case and the offence cannot be brought
under section 304 (Part 1) I.P.C. The evidence of P.Ws. l, IO and 11 proves be-
yond reasonable doubt_ that these two appellants Sunil Kumar and Ved Prakash
attacked the deceased Prakash Chandra and Un1esh Chandra with kniveS as a
result of which both of them, who had no weapons died on the spot and these
two apellants attacked P.W. 11 with knives with such intention that if he had
died as a result of the injuries sustained by him they would be guilty of murder
in furtherance of their common intention to murder. Their conviction under
section 307/34 is proper. [ 408 F-H, 409 C-D]
fl.AM KARAN v. U.P. (Fazal Afi, J.) 397
CRIMINAL APPELLATE JuRISDICTJON : Criminal Appeal No. 329. A
of 1975.

From the Judgment & Order dated the 15th April, 1975 of ibe
Allahabad High Court in Cr!. A. No. 1144 of J971.

RL. Kohli and S.K. Sabharwal for the Appellants. B
D.P. Uniyal and R.K. Bhatt for the Respondent.

The following Judgments were delivered :

FAZAL Au, J. This appeal by special leave is directed against c
a judgment dated 15.4.1975 of the Allahabad High Court by which
the Judges of the High Court while acquitting the accused, Anil
Kumar and Satish Kumar, altered the conviction of Ram Karan,
Sunil Kumar and Ved Prakash from one under ss. 302 and 307 read
with s. 149 I.P.C. to one under ss. 302 and 307;read;with s. 34, I.P.C.
and confirmed the sentences of imprisonment for life imposed.on D
these appellants.

The prosecution case has been detailed in the judgment of the
High Court as also in the judgment of our learned Brother
Varadarajan J. and it is not necessary to repeat the same. So far
as the question of occurrence is concerned that has been proved E
beyond reasonable doubt as pointed out by Brother Varadarajan,
J. as also by the High Court. We also agree with the appreciation
of the evidence by Brother Varadarajan, J. and his conclusion that
the two deceased died at the hands of the appellants.

I,""
t' --
The entire occurrence seems to have been the result of 'l1
chronic land dispute between the parties in which several commis·
sions were issued and which ultimately proved futile. The prose•
cution bas no doubt proved that the two persons were killed at the
hands of the accused and that the occurrence had taken .place while
the Commissioners were present at the spot though they were not
able to see the actual assault and were, therefore, not in a position G
to depose the detailed manner in which the assault had. taken place.

The only serious question on which we would like ito sound a
· discordant note from our Brother Varadarajan, J. is as to the actual H
nature of the offence which had been committed by the appellants,
Sunil Kumar and Ved Prakash. It would appear from the evidence
398 SiJJ'llEM~ couat REPOllts [198~1 j s.c.i<.

A of CW I as also other eye-witnesses that the accused were also
assaulted with knife and one of them, Chhotey Lal, died as a re•ult
of the injuries caused to him. The medical evidence as also the
evidence of CW I clearly shows that there was exchange of hot
words, followed bY the assault on the appellants which, according
to the prosecution, was a result of the exercise of ~elf-defence by the
B prosecution party, particularly Dinesh Chandra.

In fact, the learned Sessions Judge and the High Court held
that the acc11sed were the aggressors and, therefore, they had no
right of private defence. In order to ascertain whether the accused
c had the right of private defence, the genesis of the incident has to he
traced. !'!ow, in this case the prosecution witnesses being partisan,
the only important injured witness Dinesh Chandra, PW 11 being
the son of the deceased, it would be necessary to ascertain with
accuracy the genesis of the quarrel as revealed from the evidence of
Court witnesses not shown to be partisan. CW I, Prem Narain
D Mathur is the practising advocate and was appointed as a Commis-
sioner. He was .accompanied by Mahesh Chandra, Vakil, CW 3,
advocate appearing on behalf of the plaintiffs (accused Ram Karan)
in the suit in which Commission was issued and Shri Jafar Imam,
CW 2, learned advocate appearing for the defendants. in the same
suit. C.W. I and C.W. 3 were at the house of accused I Ram
E Karan. C.W. I says that several persons assembled at that time at
the house of Ram Karan. He is a bit vague but he says that at that
time after tea was served and he was about ·to leave that place he
saw a person lying on the pavement of the road. This injured
person was lying in front of the house of accused I Ram Karan.
This statement has not been questioned in cross-examination nor
F ~dversely commented upon. · It give.s a clue to the genesis of the
occurrence. After measurements were taken as· directed by the
Court, C.W. I and C.W. 3 came to the house of accused I Ram
Karan. Some persons collected there. According to C.W. I injured
persons were seen lying in front of the house of accused 1 and that
was none else than the deceased. If amongst those who collected
G
at the house were the t"o deceased and P.W. 11 Dinesh Chandra,
another injured witness on the side of the prosecution, it is crystal
clear that the prosecution witnesses and the two deceased Prakash
Chandra and Umesh Chandra had come to the house of accused I
H Ram Karan. How, if one of them was· armed with a knife, they
must have come with a view to either picking up quarrel or to guard
themselves. The occurrence took place in front of the house of
,

ii.AM KARAN v. U.P. (Fazal Ali, J.) 399
accused I. On the side of [the prosecution Prakash Chandra and A
Umesh Chandra received fatal injuries and Dinesh Chandra was
also injured. However, on the side of the accused Chhotelal, son
of accused I Ram Karan, suffered six injuries one of which proved
•
fatal and he died. Accused Ram Karan himself was also injured.
Injuries on both sides appear to have been caused with sharp eutting

. .. weapon like knife, It is easy to infer the genesis of the dispute .

Both the parties were completely exasperated with the liti~ .~ion.
B

Accused I Ram Karan had. summoned Commission on five to six
occasions and his attempt to end the litigation was thwarted by
objections being taken on the side of Prakash Chandra deceased.
Therefore, both sides were in an exasperated mood. Suddenly at c
the spur of the mo.men! there ensued a quarrel. Prakash Chandra
and Umesh Chandra on the side of the prosecution died and
Chhotelal on the side of the accused died and each of them met a
homicidal death. On the side of the prosecution Dinesh Chandra
was injured, on the side of accused Ram Karan was injured. From
this an irresistible inference ensues that exception 4 to s. 300, I.P.C. D
would be attracted. The exception provides that culpable homicide
is not murder, if it .is committed without premeditation in a sudden
fight in the heat of p!!ssion upon a sudden quarrel and without the
offenders having taken undue advantage or acted in a cruel or
unusual manner. All the ingredients of Exception 4 are satisfied.
Prakash Chandra and his two sons and others came to the house of E
accused I to protest for the work of the .Commi.ssioner. Dinesh
Chandra amongst them was armed with a knife. May be, he may
be usually carrying the same for his safety. The incident o~curred
in front of the house of accused I upon a sudden quarrel by this
confrontation with eyebrows .having been raised because of a persis-
tent litigation, the occurrence took place. There is no clear evidence F
to show that any.one took undue advantage or acted in a cruel or
unusual manner.

Taking an overall view of the situation, we find no evidence of
any intention to kill the two deceased on the part of the accused G
because the occurrence itself had taken place suddenly when, to
begin with, the entire episode started for the particular purpose of
partitioning the land by the Commissioners who had visited the
village. In these circumstances we are satisfied that Exception
4 of s. 300, J.P.C. is attracted and the offence of murder would be H
reduced to culpable homicide in respect of accused Sunil Kumar
and Ved Prakash and, therefore, they would be 1;1uilty of committinl;l
400 SUPREME COURT REPORTS [!982J 3 s.c.R.

A an offence under s. 304(1)/34 I.P.C. and they should be convicted
accordingly. To this extent, therefore, we are unable to agree with
• Brother Varadarajan, J. that the conviction of the appellants Sunil
Kumar and Ved Prakash under s. 302 read with s. 34 of the l.P.C.
should be confirmed.
B We, therefore, allow this appeal to the exterit that the convic-
tion of Sunil Kumar and Ved Prakash are altered from one under
s. 302 read withs. 34 of the I.P.C. to that under s. 304(1)/34 I.P.C.
and they are sentenced to rigorous imprisonment for seven years.
Conviction and sentences under s. 307/34, I.J>.C. are maintained and ,,..,.-__..
c sentences award_ed have already been directed to run concurrently.
We allow the appeal of Ram Karan as indicated by Brother
Varadarajan, J.

VARADARAJAN, J. This Criminal Appeal by special leave is
directed against the judgment of a Division Bench of the Allahabad
D High Court in Criminal Appeal No. 1144 of 1971, whereby the
learned Judges, while acquitting two appellants Anil Kumar and
Satish Kumar of the charges, altered the conviction of Ram Karan,
Sunil Kumar and Ved Prakash, appellants in this Criminal
Appeal, under s. 302 and s. 307, both read with s. 149 l.P.C., into
one under ss. 302 and 307 both read with s. 34 I.P.C. and confirmed
E the sentences of imprisonment for life for each of the two counts of
murder of Prakash Chandra and Umesh Chandra and rigorous
imprisonment for four years for attempt to murder. Dinesh Chandra
(P. W. 11) to run concurrently and set aside the conviction of the
appellant Ram Karan under s. 147 ·and the other two appellants
under s. 148 I.P.C.
F
The first appellant Ram Karan is the father of other appellants
Sunil Kumar and Ved Prakash and also of Anil Kumar and Satish
Kumar,· who have been acquitted by the High Court as well as of
deceased Chhotey Lal. The learned Sessions Judge who tried the
G case convicted Ram Ra ran -and all bis four sons, Sunil Kumar, Anil
Kumar, Ved Prakash and Satish Kumar under s. 302 read with s.
149 I.P.C. (two counts) and s. 307 read with s. 149 l.P.C. and
sentenced them to undergo imprisonment for life on each of the
two counts under s. 302 read withs. 149 I.P.C. and to imprisonment
H for four years unper s. 307 read with s. 149 I.P.C. He convicted
Ram Karan under s. 147 and bis aforesaid four sons under s. 148
J.P.C. and sentenced Ram Kiiran to undergo rigorous imprisonment
RAM KARAN v. U.P. (Varadarajan, J.) 401

for one year and his sons to undergo rigorous imprisonment for two
years under s. 147 and s. 148 J.P.C. respectively.

The case of the prosecution was this :- The deceased Prakash
Chandra was the father of the deceased Umesh Chandra and the
injured witness Dinesh Chandra (P.W. II) as well as ofGyan Chand B
(P.W. !). Prakash Chandra and his sons were living in Seohara town,
Bijnor district. The appellant Ram Karan and his five sons includ-
ing the deceased Chhotey Lal were living in another house in the
same town as the neighbours of Prakash Chandra and his sons.
Prakash Chandra and his sons built a new house on a vacant land
wl!ich existed between these two houses about three years prior to
c
the occurrence in this case which has taken place at about !.00 p.m.
on 6.9.1970. The appellant Ram Karan and five others filed Civil
Suit No. 34 of 1967 in the court of the Munsif, Nagina against
Prakash Chandra and his brother Gopi Chandra and one Krishna
Devi, alleging that while constructing the new house Prakash D
Chandra had encroached upon a portion of their land. In that suit,
Ram Karan got Commissioners appointed by the court on five or
six occasions for taking measurements of the properties with the
object of proving his case of encroachment by Prakash Chandra.
But those Commissioners' reports •were set aside on the objection
raised by Prakash Chandra and the other defendents. The last
Advocate Commissioner Mr. Mathur (C.W. I) visited the spot on
6.9.1970, accompained ·by Mr. Zafar Hussain (C.W. 2) who appear-
ed for Prakash Chandra and another and Mr. Mahesh Chand
(C. W. 3) who appeared for Ram Karan. After the completion of

-
the survey work at about 12.30 p.m. all the three lawyers were
standing and talking in front of Ram Karan's baithak at about 1.00
-~. p.m. Then Prakash Chandra and Umesh Chandra came there to
I talk with the Commissioner. Ram Karan, who was present there
afong with his five sons, did not like that interference of Prakash
Chandra and Umesh Chandra with the Commissioner. He stated
that he has spent thousands of rupees for taking out the commis-
sions and that the reports of the Commissioners were set aside on G
the objection of Prakash Chandra. So saying, he instigated bis sons
to kill Prakash Chandra and his sons. Thereupon, Chhotey Lal .
and Ved Prakash attacked Prakash Chandra with knives while Sunil
Kumar, Anil Kumar am! Salish attacked Umesh Chandra with
knives. On seeing Dinesb Chandra (P.W. 11) who rushed mean- H
while from the eastern side to help his father] andJilbrother, Ram
Karan instigated . bis sons to attack:him:and cau$hl hold of him by
402 SUPREME COURT REPORTS [1982) 3 s.c.ll.

A his waist, and all his five sons 'attacked him and inflicted injuries.
Then P. W. 11 took out a knife from his pent pocket and wielded it
against Ram Karan and Chhotey Lal in self-defence and they
sustained injuries. P.W. 11 received injuries and fell down. Gyan
Chandra (P.W. I), who was seeing the occurrence, ran to his house
along with some ·others and bolted the door when Sunil Kumar,
8 Anil Kumar and Satish chased him for attacking him. Abdul
Wahid, P.W. JO, and others who were witneising the occurrence
raised an alarm, and Ram Karan and his sons ran away.

Gyan Chand, (P.W. I) came out· of his house sometime later
• and found his father Prakash Chandra and brother Umesh Chandra
c dead and Dinesh Chandra (P .W. 11) lying witlt injuries. He prepared
the report, Ex. Ka. 3 and proceeded in a jeep with his brother
Dinesh Chandra (P.W. 11), to Seohara Police Station situate about
half a mile away and handed over that report at 1.30 p.m. Dinesh
Chandra (P.W. II) was taken to Dhampur hospital after he was
given first aid by a Doctor on the way. He was examined at the
D Dhampur hospital by Dr. Bagchi, P.W. 3 who found on his person
an abrasion and nine incised wounds of which injury No. 7 on the
right side of the chest through which blood and air were coming
out was serious and the rest were simple.
' .

E The dead bodies of Prakash Chandra and Umesh Chandra
which were found lying in front of their house where blood also
was found, were later sent for autopsy. Ram Karan and Chhotey
Lal went to the Government hospital, Bijnor where they were exa-
mined by Dr. Sarin (P.W. 2) at 4] p.m. and 4.15 p.m. respectively
on 6.9.1970. P.W. 2 found one punctured wound and four incised
F wounds on Chhotey Lal and three incised wounds on Ram Karan.
The injuries on both of them were fresh and those on Ram Karan
were simple while injury No. 1 on Chhotey Lal, namely, a punctured
wound which was lung-deep· and anterior to the left nipple, was
grievous and the rest were simple. The injuries on both could, in
the opinion of P.W. 2, have been caused by knife. P.W. 2 issued
_ .
G the wound certificates Ex. Ka. 12 and Ka. 13. Ram Karan' s report
was lodged at the Police Station at 10.30 p.m. on 6.9.1970. Chhotey
Lal died in the District'hospital, Bijnor on 10.9.1970.

Dr. Zuber conducted autopsy on the bodies of Prakash
H Chandra and Umesh Chandra on 7.9.1970 and found nine antemor-
tem, injuries, of which six were incised wounds, on the body of
fra)cas!i Chandra and sil( a11temortem incised woµn\ls 011 tile l;>o\ly
RAM KARAN v. U.P. (Varadarajan, J.) 403

of Umesh Chandra and he opined that the death of both of them A
was due to shock and haemorrhage resulting from the incised injuries.
Ex. Ka. I and Ka. 2 are the post-mortem certificates relating to •
Prakash Chandra and Umesh Chandra issued by Dr. Zuber who
was examined as P.W. I in the Committing Magistrate's Court (Ex.
Ka. 37). Dr. Dua (C.W. 4) conducted autopsy on the body of
Chhotey Lal on 11.9.1970 and found an abrasion a11d five incised 8
wounds which were sufficient in the ordinary course of nature to
cause death.

~- ~ The prosecution's case rests mainly on the evidence of Gyan
Chand (P.W. I), Abdul Wahid (P.W. 10) and D)nesb Chandra
(P.W. 11). As stated earlier P.Ws. I and 11 are the sons of deceased C
Prakash Chandra and brothers of the other deceased Um"esh
Chandra. P.W. 11 had received injuries during the occurrence and
P. W, I is the witness who had lodged the First Information Report
(Ex. K. 3) in the Seobara Police Station at the earliest opportunity
at 1.30 p.m. soon after the occurrence which bad taken place at
about 1.00 p.m. These three witnesses were put forward as eye- D
witnesses and they have deposed in support of the case of the
prosecution.
The accused put forward their version of the case. According
to the accused, after the Commissioner (C. W. I) finished bis work
and went to the house of the appellant Ram Karan, Prakash E
Chandra and bis sons Umesh Chandra and Dinesb Chandra (P. W.
11) came to the baitbak of Ram Karan and attacked Ram Karan
and deceased Chbotey Lal with knives and thereupon they grappled
with those three persons and wrested the knives from· them and
attacke.d them in self-defence. The accused· examined D.W. 1 on
their behalf. The court examined the Commissioner and the counsel F
of the parties in the civil suit as C. Ws. I to 3 and the Doctor who
conducted autopsy on the body of Chhotey Lal as C. W. 4.

The evidence of C.W. I is that after he completed taking
measurements he went along with Ram Karan's counsel Mr. Mahesh
Chandra (C.W. 3) to the baithak of Ram Karan's house, that both G
of them came out of the house 8 or JO minutes later, that when he
advanced from the door of· the baithak he saw a person lying
injured on the pavement of the road and another injured person
. standing there, that a third person came and struck the injured
person who was standing, and that he and C.W. 3 left the place H
thereafter. The evidence of C.W. 3 is that he and C.W. I who
bad goo~ to the baithak of R\lm Karan'a holJse after G· w. I hl!d
404 SUPREME COURT REPORTS [1982) 3 S.C.R.

A taken the measurements, came out of the baithak 5 or 7 minutes
• later, and saw Chhotey Lal grappling with a young man, that in
' the course of grappling Chhotey Lal fell down bleeding, that
Chhotey Lal managed to get up and snatched the weapon of the
assilant and struck him with it, that Prakash Chandra came to the
rescue of the young man and Cbhotey Lal struck him with the
B same weapon and both the youngman and Prakash Chandra fell
down after receiving injuries from Chhotey Lal, and that on account
of the incident he went away along with C. W. I. C.W. 3 has added
that soon after he went and sat in the baithak of Rani Karan's
house, Zafar Hussain (C.W. 2) came and said something to C.W. I
from beyond the door of the baithak. The evidence of Zafar
c Hussain (C.W. 2) is that after measurements had been taken C.
Ws. I and 3 went to the baithak of Ram Karan 's house while he
sat in the verandah of the old haveli of Prakash Chandra, that he
and Prakash Chandra's son, who is now no more, thereafter went
near the Commissioner (C.W I) and he told C.W. 1 that he mily
D hear what Prakash Chandra wanted to say, that after saying so he
got back for meeting another person while Prakash Chandra and
his son remained there, that after reaching the verandah of Prakash
Chandra he went away with Mchboob Ali who was waiting for him
to Mehboob Ali's house and that no quarrel took place when he
was present there though when be was returning to the verandah
E of Prakash Chandra's house he heard some hot words being ex-
changed near the baithak of Ram Karan's house.

The learned Sessions Judge bas observed in his judgment that
the evidence of C.Ws. 1 to 3 is contradictory, unnatural and not
truthful. He found that P.W. l's report (Ka. 3) was lodged in the
Police Station at 1.30 p.m. soon after the occurrence had taken
place at about 1.00 p.m. and that there bas been no attempt at
concoction in this case. He rejected the contention that Abdul
Wahid, (P.W. IO) had any reason to depose falsely against the
appellant Ved Prakash and found his evidence to be reliable. He
observed, that though Prakash Chandra bad been working as an
G Engineer in a sugar mill at Seohara and P.W. 10 was employed in
the engineering department, P.W. 10 was actually working under
one Bachcha Lal and is an independent witness. P.W. 1 has stated
in his evidence that Prakash Chandra, Umesh Chandra and Ram
Karan did not have any weapon at the time of the occurrence. The
H
evidence of the injured witness P.W. 11 is that when he returned
home from Moradabad a,t abol!t 12,30 p.m. on the day of occurrence
RAM KARAN v. U.P. (Varadarajan, J.) 405

he saw his father Prakash Chandra and brother Umesh Chandra A
lying in a pool of blood and that on seeing him Ram Karan shouted
that he also should be killed and caught hold of him by his waist
and that he was attacked with knives by the accused persons inclu·
ding Ram Karan and he wielded in self-defence the knife which he
had purchased on that day for his work.
B
The learned Sessions Judge accepted the evidence of P.Ws. I,
IO and 11 and commented upon Ram Karan and Chhotey Lal going
to the hospital at Bijnor without arranging for a report being given
....-·----........_ at the Police Station at Seohara in time and held that the accused
were the aggressors and that Dinesh Chandra (P.W~ 11) caused
injuries to Ram Karan and the deceased Chhotey Lal in the exercise
c
of the right of private defence. Accordingly he found the accused
guilty and convicted them and sentenced them as mentioned above.

The High Court also rejected the defence theory that Chhotey
Lal was attacked by three persons armed with knife, chura and D
khukhri having regard to the fact that he had only one lung deep
punctured wound and the other four wounds were only skin deep
and of very minor dimensions,

The learned. Judges of the High Court found that the name of
Anil Kumar is not mentioned in the First Information Report (Ex.
Ka. 3) but instead the name of one Virendra is mentioned and that
it appears from the evidence of P.W. I that Virendra is the

-
name of Prakash Chandra's brother. They found that in the state·
ment of P.W. 11 recorded as dying declaration, Sushi! Kumar is
mentioned instead of Satish Kumar. In these circumstances the
-~
learned Judges found that there is reasonable doubt regarding the
participation of the accused Anil Kumar and Satish Kumar and
they gave the benefit of that doubt to those two appellants before
them and acquitted them.. In other respects, the learned Judges
accepted the evidence of P.Ws. !, IO and 11 regarding the occurrence
and rejected the defence version and held the appellants guilty
under s. 302 read with s. 34 in respect of the murder of Prakash
G
Chandra and Umesh Chandra and under s. 307 read with s. 34 in
respect ofDinesh Chandra, (P.W. II) and convicted them accor-
dingly and sentenced them to undergo imprisonment for life under
s. 302 read with s. 34 I.P.C. and rigorous imprisof!men\ for four tt·
years under s, 307 read with s. 34 I.P.C ·
A
406 SUPREME COURT REPORTS [1982] 3 s.c.n.

We perused the records and the judgments of the learned
4
Sessions Judge and of the learned Judges of the High Court and
heard the arguments .of Mr. R. L. Kohli, Senior Advocate who
appeared for the appellants and of Mr. D.P. Uniyal, Senior Advocate
who. appeared for the respondent-State of U.P. We were taken
through the evidence of P. Ws. I, JO and J l. The learned Sessions Judge
B bas observed in bis judgment that the evidence of the three lawyers
C.Ws. 1 to 3 is contradictory, unnatural and nqt truthful and that
if they had given honest evidence it would have been easier for the
court to conclude which side was the aggressor. This observation
of the learned Sessions Judge appears to be too sweeping and not
c correct at least with reference to C.W. 2 who has professed igno-
rance about the actual occurrence in the case and has stated that
he left after asking C.W. 1 from outside the baithak of Ram Karan's
house to hear what Prakash Chandra who had gone with him and
his deceased son wanted to tell him because another person
Mehboob Ali with whom he later went to his house was waiting
for him in the verandah of Prakash Chandra's house. The evidence
D
of C.W. 2 that no quarrel took place when he was present there
though when he was returning to the verandah of Pr(lkash Chandra's
house be heard some hot words being exchanged near the baithak
of Ram Karan's house, is, in a way, corroborated by the evidence
of P.W. I. P.W. 1 has stated that when e•change of hot words
E started the Commissioner and Vakils of the parties moved from
there to the road and that just when Ram Karan's Vakil had gone
a short distance from Ram Kiiran's house, Ram Karan and others
stated that "they have got our thousands of rupees spent over liti-
gation. We have become tired of getting commissions issued. Kill
-
them today so that the trouble may be ended for ever. At that time
.r all the five sons of Ram Karan, Chhotey Lal, Ved Prakash, Salish
Kumar, Sunil Kumar and Anil Kumar were present, and when 'Ram
Karan said so all five sons whipped out knives and started assult-
ing ...... ", This portion of the evidence of P.W. I is to the effect
that the lawyers C.Ws. 1-3 were not present at the time of the actual
assault on the deceased Prakash Chandra and Umesh Chandra as
G well as on P.W. 11. Even P.W. 10 has stated in his evidence that
"when he reached near dharmshala at about 12.45 p.m. he heard
the shouts of Ram Karan from his house situate at a distance of 30
paces, tha(when he reached the end of the road he was in a position
to see the house of Ram Karan, that on hearing the shouts he
.H proceeded towards the place from where they came and stood near·
RAM KARAN v. U.P. (Varadarojan, J.) 401
A
the wall and found three Vakils present and also Prakash Chandra
and Umesh Chandra, fthat as soon as he reached the place, the
Vakils left the place, that Ram Karan then stated that he got the
Commissioner appointed 5 or 6 times and spent several thousands
of rupees and he should be killed and that when Ram Karan said
so his sons Chhotey Lal and Ved Prakash began to attack Prakash
B
Chandra with knives, that Sunil Kumar· and Ram Karan's other
sons began to assault Umesh Chandra with knives, that during the
marpit Prakash Chancjra and Umesh Chandra fell down after
._ receiving injuri~s. that thereafter Dinesh Chandra, son of Prakash
r 'chandra came from the eastern direction, and on seeing him Ram
Karan shouted that he should also be done to death, and he caught
hold of-Dinesh Chandra by his waist, and that all the four boys
c
and deceased Chhotey Lal began to assault Dinesh Chandra with
knives, and Dinesh Chandra wielded his knife in self-defence and
caused injuries to Ram Karan and ~hhotey Lal and thereafter fell
down and ·became unconscious ... "; This portion of the evidence
of P. W. I 0 also shows that C. Ws. I to 3 left the place soon after D
exchange of hot words began between the two sides. Therefore,
I am of the opinion that there is no reason to reject the evi·
dence of C.W. 2 that no quarrel took place when he was present
near about the scene of occurrence. In the circumstances of the
case, it is very probable that before serious trouble started from the
exchange of hot words, C.Ws. I to ·3, the Commissioner and th~ E
counsel for both the parties in the civil suit, left the place and were
not present at the time of the actual occurrence as stated by P.Ws.
I and 10.

Mr. R. L. Kohli drew our attention to some portions of the F
judgment of the learned Judges of the High Court and submitted
that the observation of the learned Judges .that from the side of the
defence it was not suggested to any witness that Abdul Wahid
(P. W. 10) was a different man and that h~ has been introduced
because the real Abdul Wahid was not prepared to support the
prosecution case is· incorrect. The learned counsel further .sub. G
mitted that the observation of the learned Judges that the presence
of Gyan Chand (P. W. l) at the time of the occurrence does not
appear to have been challenged by the defence is also not correct.
This criticism of the learned counsel for the appellants appears to
H
be well-founded, for I find that a suggestion has been made to
P.W. IO in cross-examination and he has admitted that there is also
408 SUPREME COURT REPORTS [1982] 3 s.c.k.

A another person named Wahid son of Abdul Rehman in his ruohalla
and that that person was an accused in a rioting case. And in the
cross·examination of P.W. I it has been clearly suggested that he
was not present at the spot and that he prepared the report Ex.
Ka. 3 afterwards with some consultation. P. W. I has no doubt
denied that suggestion and stated that he was present at the spot
8 and that he himself wrote the report Ex. Ka. 3 before he came out
of the house by opening the door. The learned Judges have stated
in their judgment that after Ram Karan stated that he has spent
thousands of rupees on commissions and every time the report of __,..
the Commissioner was set aside on the objection of Prakash Chandra /
and·he instigated his sons to kill Prakash Chandra and Umesh
c Chandra, all the five sons of Ram Karan started giving knife blows
to Prakash Chandra and Umesh Chandra and both of them fell
down. This portion of the judgment of the learned Judges is to
the effect that all the five sons of Ram Katan including the deceased
Chhotey Lal attacked the deceased Prakash Chandra and Umesh
D Chandra whereas it is the case of the prosecution as brought out in
the evidence of P.W. I that after.Ram Karan instigated his sons to
open the attack only Chhotey Lal and Ved Prakash attacked
Prakash Chandra with knives and only Sunil Kumar. Anil Kumar
and Salish Kumar attacked Umesh Chandra with knives. It is
unfortunate that these inaccuracies have crept into the judgment
E of the learned Judges of the High Court. But on an overall consi-
deration of the entire material on record and the evi.dence in the
case in the light of the arguments of the learned counsel for the
parties I am of the opinion that the appreciation of the evidence of
. P.Ws. !, 10 and l! by the learned Sessions Judge and the learned
Judges of the High Court in so far as the appellants Sunil Kumar
F and Ved Prakash are concerned is correct and that the evidence of
P.Ws. I and JO proves beyond reasonable doubt that these two
appellants Sunil Kumar and Ved Prakash attacked the deceased
Prakash Chandra and Umesh Chandra with knives as a result of
which both of them, who had no weapons died on the spot, and the
evidence of P.Ws. IO and 11 proves satisfactorily and beyond any
G reasonable doubt that these two appellants attacked P.W. 11
with · knives with such intention that if he had died as a
result of the injuries sustained by him they would be guilty
of murder in furtherance of their common intention to mnrder.
The dead bodies of Prakash Chandra and Umesh Chandra
H and blood were ifound in front of the house of both the
RAM KARAN v. U.P. (Varadarajan, J.) 40~

deceased and P.W. 11. Both the deceased had no weapons and A
they bad been attacked before P.W. 11 arrived and wield his knife
against Ram Karan and Chhotey Lal. The main occurrence had
taken place in front of the house of both the deceased and P. W. 11.
Before the trial court it was not submitted that the attack by the
accused persons on both the deceased Prakash Chandra and Umesh
Chandra and P.W. 11 was without any pre-meditation in a sudden 3
fight in the heat of passion upon a sudden quarrel. Nor is it a case
in which it could be said· that the offenJers had not taken undue
advantage or had not acted in a cruel or unusual manner. No such
argument was put forward even befere the High Court to bring the
main occurrence under s. 304 (Part I) I.P.C. Since I have found
that the occurrence has taken place in front of the house of the two
c
deceased and P.W. 11 in this case and that the accused persons
were the aggressors neither Exception 2 nor Exception 4 to s. 300
I.P.C. would apply to the facts of this case and the offence cannot
be brought under s. 304 (Part I) I.P.C. In these circumstances, I
agree with the learned Sessions Judge that the appellants Sunil Kumar D
and Ved Prakash were the aggressors and find that they have been
rightly convicted under s. 302 read with s. 34 I.P.C. for the offence
of murder of those two persons and under s. 307 read with s. 34
I.P.C. with reference to P.W. II. But I am of the opinion, having
regard to the age of appellant Ram Karan, who was about 70 years
old at the time of the occurrence that there is a reasonable doubt E
as to whether he would have caught hold of the young man Dinesh
Chandra (P.W. 11) by bis waist and whether he would have asked
all his sons to attack and kill Prakash Chandra and his son. I
therefore, give the benefit of this reasonable doubt to the appellant
Ram Karan and set aside his conviction under s. 302 read with
s. 34 (two counts) and under s. 307 read with s. 34 and acquit him F
and direct him to be set at liberty forthwith if he is in custody and
his presence is not required in connection with any other case. In
other respects I dismiss the criminal appeal and confirm the con-
·viction of Sunil Kumar and Ved Prakash and the sentences awarded
to them.
G
In accordance with the opinion of the majority, the appeal is
allowed to the extent that the conviction of Ram Karan under s. 302
read with s. 34 (two counts) and under s. 307 read with s. 34 of
the Indian Penal Code is set aside and he is acquitted and that H
convictions of the appellants, Sunil Kumar and Ved Prakash, are
•
410 SiJPREMB COURT RBPORTS • (1!>82J 3 S.C.R.

A altered from one under s. 302/34, I.P.C to that under s. 304(1)/34, -r
IPC and they are sentenced to rigorous imprisonment for seven
years. Conviction and sentences under section 307/34, I.P.C. are
maintained and sentences awarded have already been directed to ·
B - run concurrently.

S.R. Appeal parrly allowed.

•