KAILASH GAMBHIR, J.
1. The appellants have preferred the present appeal to challenge the judgment of conviction dated 22.10.1997 and order on sentence dated 24.10.1997 thereby convicting the appellants to undergo imprisonment for life under Section 302/34 IPC and to pay fine of Rs. 500/- each and in default of payment of fine to further undergo simple imprisonment of three months each and to undergo rigorous imprisonment of one month each under Sections 323/34 IPC.
2. Brief facts of the case as set up by the prosecution are that the accused persons and the complainant side are resident of the Village Bakhtawarpur within the jurisdiction of Police Station Alipur. The accused persons and the complainant party are distantly related to each other. However, both the parties were having strained and inimical relations prior to the occurrence and were not on speaking terms. The accused Ramesh and accused Randhir Singh are brothers. On 29.05.1993 at about 8.40 p.m complainant Subhash Chand and PW Satish were coming to Village Bakhtawarpur on a two wheeler scooter after meeting their sister at Village Jyonty. When they reached the bus stop, accused Sudesh asked Satish Kumar why they are not returning his money since several days. On this Satish paid Rs. 250/- to accused Sudesh and demanded back the balance amount of Rs. 20. On this accused Mukesh started abusing in the name of sister and pushed him. Accused Sudesh challenged him to do whatever he could and that he would not return him the balance. Subhash tried to intervene to reconcile the dispute. Thereafter accused Sudesh picked up a brick lying nearby and tried to hit that brick to PW Subhash. Subhash dived and saved himself from the brick blow. Accused Sudesh then brought a danda from a nearby Ravi Tent House and attempted to hit Subhash with that danda. Subhash got hold of that danda. Meanwhile co-accused Randhir Singh and Naresh Kumar came running to that place. They were armed with lathi. On reaching the spot, accused Randhir hit complainant Subhash with lathi on his head as a result of which Subhash fell down on the ground. When he tried to get up from the ground, Naresh gave him a lathi blow on his shoulder from the back side. During this period Satish got a chance to call Ajit, brother of the complainant Subhash Chand. Ajit reached at the spot and intervened in the matter to save Subhash from the hands of the accused persons. The accused Ramesh also reached there at the spot. Then the accused Randhir gave a lathi blow on the waist of Ajit. Accused Naresh caught hold of Ajit from his left side and accused Mukesh caught hold of Ajit from his right side and accused Ramesh grabbed Ajit from behind. Accused Randhir shouted and exhorted his son Sudesh by saying “MAAR SALE KO, JAAN SE KHATAM KAR DE.” Thereafter, accused Sudesh took out a knife from the right side of his pant and stabbed Ajit on the left side of his chest, as a result of which Ajit fell down on the ground. Many persons of the village including one Sukhpal having his shop at Bakhtawarpur collected at the spot. The accused persons ran away from the spot after the occurrence. In the scuffle accused Mukesh, Naresh, Ramesh and one Asha who had reached at the spot also received injuries at the hands of Subhash and Satish when they tried to save themselves. Ajit was removed in a private Maruti Van to the Hospital at Azadpur. Dr. H.K Khanna running in the name of Khanna Nursing Home at Sarai Peepal, Azadpur, Delhi medically examined injured Ajit and found no pulse or heart beatings and referred the patient to Hindu Rao Hospital. The injured Ajit was thereafter brought by the complainant and other persons in the said Maruti Van at Police Station Alipur. After getting the information about such occurrence Dharam Singh father of injured Ajit Singh also reached at the Police Station from the spot. At 9.30 p.m the police of PCR van was informed by someone about the occurrence at the spot. Head Constable H.C Jain Singh of PCR Van reached along with Driver and Constable and removed two male and one female that is, Ramesh, Naresh and Asha to Hindu Rao Hospital and got them admitted there. The intimation regarding the occurrence was also received by the lady Constable Pista Sharma at about 9.20 p.m She passed on this information to Police Station, Alipur where DD No. 18A was recorded at about 9.25 p.m ASI Balbir Singh along with Constable Vinod reached at the spot on the basis of DD No. 18A. On reaching at the spot he came to know that the injured person had already been removed to the hospital. From the spot he left for the hospital via Police Station Alipur. On reaching PS Alipur he found injured Ajit Singh in a Maruti Van to have been brought by Subhash, Satish and Rakesh. Ajit Singh shifted from Maruti Van to the Police vehicle and was brought at Hindu Rao Hospital where he was declared brought dead by the concerned doctor on the MLC at 10.55 p.m SHO/Inspector Gurmeet Singh of PS Alipur on getting the receipt of the information at wireless at about 9.30 p.m also reached at the spot and from there to Hindu Rao Hospital. At the Hospital ASI Balbir Singh handed over to him the MLCs of Naresh, Ramesh, Subhash and Asha and that of the deceased. Inspector Gurmeet Singh recorded the statement of complainant Subhash and made his endorsement over the same and got the present case registered by sending Rukka through Constable Ravinder Singh. Inspector Gurmeet Singh also recorded the statement of Rakesh and Satish at the Hospital. He arrested accused Naresh, Ramesh and Sudesh at the Hospital and conducted their personal searches and prepared their personal search memos. The dead body of the deceased Ajit was got sent through Devender Kumar of mortuary. From the hospital Inspector Gurmeet Singh along with his police staff reached at the spot and recorded the statement of one Sukhpal. He prepared the site plan at the pointing out of Sukhpal. On 30.05.1993 he conducted the inquest proceedings on the dead body of the deceased and prepared his inquest reports and brief facts. Post mortem on the dead body was conducted by Dr. Ashok Jaiswal on 30.05.1993 at about 12.30 p.m Two injuries were found on the dead body of the deceased which were opined to be anti mortem in nature. Injury No. 1 was opined to have been caused by sharp edged weapon. Injury No. 1 was opined to be sufficient to cause death in the ordinary course of nature. Death in this case was opined to be due to haemorrhage shock consequent to injuries. Time since death was opined to be about 15 hours. The doctor who had conducted the post mortem preserved the blood sample and the clothes of the deceased and handed over the same to the police. The accused Sudesh was interrogated at the police station and his disclosure statement was recorded. He disclosed to get the weapon of offence recovered but despite efforts no weapon of offence could be recovered by the police. On 31.05.1993 accused Mukesh was arrested and his personal search was conducted. Thereafter, accused Randhir surrendered himself in the court and he was arrested there by the police. During the investigation of the case, IO collected the MLCs of Naresh, Ramesh and Subhash. Injuries on the person of Naresh and Ramesh were opined to be simple. Injuries on the person of Subhash were also opined to be simple. Injuries on the person of Mukesh are opined to be grievous by the concerned doctor. During the investigation of this case, IO got sent the sealed pulandas of this case to CFSL, Lodhi Road and thereafter collected the CFSL reports. IO recorded the statement of concerned witnesses at the different stages of investigation and after completion of the investigation filed the challan against the accused persons for the commission of offence punishable U/s 302/308/34 IPC in the court of Ld. Metropolitan Magistrate, Delhi. After complying with the provision of 207 Cr.P.C the Ld. Metropolitan Magistrate committed the case to the Court of Sessions. The charges were framed under Section 302/308 read with Section 34 IPC against all the accused persons. All the accused persons pleaded not guilty and claimed trial.
3. To prove the said charges against the accused persons the prosecution had examined 22 witnesses, which includes three eye witnesses. Learned Sessions Judge recorded the statement of all the accused persons under Section 313 Code of Criminal Procedure and all the accused persons had denied the allegation of the prosecution in their respective statements. The accused Randhir Singh in his statement under Section 313 Cr.P.C took a stand that the deceased Ajit had trespassed into their house and had caused injuries to the inmates. He also stated that neither he nor his son Sudesh were present in the house at the time when Ajit had criminally trespassed into their house. He also stated that the deceased Ajit had received injuries when he had trespassed in their house. Similar is the defence raised by the accused Naresh Kumar and other accused persons as well. However, no defence evidence was adduced by the accused persons.
4. Learned Sessions Judge after having analysed the evidence adduced by the prosecution witnesses, MLC reports on record, which includes the MLCs of the accused persons and the post-mortem report Exhibit PW 10.A concluded that homicidal death of Ajit was caused by the accused persons in the manner as deposed by the eye witnesses. The learned Judge also disbelieved the defence raised by the accused persons in their statement recorded under Section 313 Cr.P.C that the incident had occurred at the residence of Randhir Singh when Ajit had trespassed in the said house. It is a matter of record that no evidence was led by the accused persons to show that the occurrence had taken place at the house of accused Randhir Singh. Learned Sessions Judge also observed that the nature of the injuries caused by the assailants was on the vital part of the body i.e chest of the deceased with sharp edged weapon and that clearly showed that the intention of the accused persons was to murder Ajit. Learned Sessions Court also observed that the intention of committing murder of the deceased also stands proved from the fact that the deceased Ajit was caught hold by the accused Naresh and Mukesh from left and right side respectively and the accused Ramesh grabbed him from behind and then the accused Randhir exhorted accused Sudesh to kill Ajit. The learned Sessions Judge also observed that these facts have not been controverted in the cross-examination of any witnesses so it clearly stood established that the offence committed by the accused persons was culpable homicide amounting to murder punishable under Section 302 IPC. So far as the charge under Section 308 IPC is concerned, learned Sessions Judge found that looking at the nature of injuries suffered by victim Subhash at the hands of the accused persons, no offence under Section 308 IPC stands proved against them but they were certainly liable for an offence under Section 323 IPC. On the point of sentence of the accused persons, the sentence to undergo imprisonment for life under Section 302 IPC read with Section 34 IPC and a fine of Rs. 500 each was imposed upon them and in default of payment of fine amount to further undergo simple imprisonment for a period of three months. The accused persons were also sentenced to undergo rigorous imprisonment for a period of one month for committing an offence under Section 323 IPC read with Section 34 IPC. Both the said sentences were directed to run concurrently.
5. Feeling aggrieved by the said order the appellants have approached this Court to challenge the said judgment on conviction and order on sentence. Addressing arguments on behalf of the appellants Mr. K.B Andley, Sr. Advocate in all raised three principal contentions to assail the findings of the learned Sessions Judge. The first contention raised by counsel for the appellants was that the weapon of offence was not recovered from the spot and in the absence of the same the prosecution failed to establish that the accused Sudesh had caused stab injuries on the chest of the deceased Ajit with a knife. Counsel for the appellants also submitted that even the lathi, which was alleged to have been used by the accused persons was not recovered from the spot. The other contention raised by the counsel for the appellants was that even as per the case set up by the prosecution fight between the two parties had taken place at the spur of the moment and therefore, it could not even remotely be inferred that there was a prior meeting of minds or there was any kind of pre-planning amongst the accused persons to kill Ajit. Counsel also submitted that even as per the prosecution case the accused Sudesh had thrown a brick on the complainant Subhash and when Subhash had saved himself from the brick attack then the accused Sudesh lifted one danda from Ravi Tent house and wielded the same at the complainant. The contention raised by the counsel for the appellants was that admittedly the accused Sudesh was not carrying either the brick or lathi with him and, therefore, it cannot be said that there was any premeditated plan of Sudesh or other accused persons to cause injury to the victim Satish and other victims including Ajit. Counsel also argued that even Randhir and Naresh were not armed with lathis and Randhir was not even aware of the fact that Naresh was carrying knife in his pocket. Counsel also argued that the accused Randhir exhorted the accused Sudesh to kill the deceased in a fit of anger not even knowing the fact that Sudesh would bring out a knife from his pocket so as to stab the deceased on the left side of his abdomen.
6. Based on these submissions, counsel argued that the fight between the parties was sudden and there was no premeditated plan or design to murder Ajit, who entered the scene of the crime later in time after the initial fight between Sudesh and Satish on account of return of the balance amount of Rs. 20/-. Counsel also argued that the appellants have already spent a period of 7 - 7 ½ years in jail and they be now let off on the sentence already undergone by them after converting the offence from Section 302 IPC to Section 304 IPC, which prescribes a maximum sentence of 10 years.
7. In support of his arguments, learned counsel for the appellants placed reliance on the judgment of this Court in the case of Bhurey Lal v. State, Crl. Appeal 578/2005, decided on 15.01.2010 Learned counsel also pleaded for leniency to the accused persons who are in close relation with the deceased and his family and also the residents of the same village. Learned counsel also submitted that the antecedents of the accused persons are clean as they were never involved in the commission of any criminal offence in the past. Learned counsel also submitted that appellant No. 1 Randhir Singh is aged about 66 years and is looking after his wife aged about 61 years and seven children. Learned counsel also submitted that appellant No. 1 was working as Baildar in the MCD and his services were terminated due to his involvement in the criminal case. Learned counsel also submitted that appellant No. 1 had remained in the custody for a period of 7 years. Learned counsel further submitted that so far as appellant No. 2 Naresh Kumar is concerned, he is aged about 46 years and he has to look after his wife and four children out of which two are married and other two are aged about 20 and 11 years respectively. As per counsel version, appellant no. 2 Naresh Kumar was also terminated from his job due to this case. Learned counsel submitted that appellant No. 2 had also remained in custody for a period of 7 and 1/2 years. With regard to appellant No. 3 Mukesh Kumar, learned counsel submitted that he is aged about 48 years and he has to look after his wife and one minor daughter who is aged about two years. Learned counsel submitted that appellant No. 3 has already undergone a sentence for a period of 7 and 1/2 years. So far as appellant No. 4 Sudesh Kumar is concerned, learned counsel submitted that he is aged about 43 years and he has to look after his wife and three minor children aged about 12 years, 9 years and 4 years respectively and he too remained in custody for a period of 7 and 1/2 years. Appellant No. 5 Ramesh is aged about 56 years and also has to look after his wife and two children and he also remained in custody for a period of 7 and 1/2 years. Learned counsel submitted that the Jail conduct of these appellants always remained satisfactory and putting them behind bars again would disturb their mental equilibrium and will cause immense hardship to their family members who are solely dependent on them. Learned counsel also submitted that these appellants have never misused their liberty after they were released on bail.
8. The present appeal has been strongly opposed by Mr. Sunil Sharma, learned APP for the State. Learned counsel submitted that there was a previous enmity between the appellants and the family members of the deceased due to which the deceased was killed by the appellants in a well designed premeditated plan. Learned counsel also submitted that for a premeditated plan it is not necessary that there has to be a prior meeting of minds as such a preconcert or preplanning may develop on the spot or during the course of commission of the offence. Learned counsel further submitted that all the appellants were involved in the commission of the said crime as the accused Naresh caught hold of deceased Ajit from his left side and accused Mukesh caught hold of deceased Ajit from his right side and accused Ramesh grabbed deceased Ajit from behind. Accused Randhir shouted and exhorted his son Sudesh by saying “MAAR SALE KO, JAAN SE KHATAM KAR DE.” Thereafter, accused Sudesh took out a knife from the right side of his pant and stabbed deceased Ajit on the left side of his chest. Learned counsel also submitted that every accused was personally involved and played his role in committing the murder of Ajit and therefore, common intention on the part of the appellants was writ large otherwise there could not have been any occasion for these persons to have snatched the precious life of a young man of about 25 years of age.
9. We have heard learned counsel for the parties at considerable length and given our thoughtful consideration to the arguments advanced by them. We have also the advantage of going through the Trial Court record.
10. The crucial question which arises in the facts and circumstances of the present case is whether the appellants have been rightly convicted for the capital offence as envisaged under Section 302 IPC or whether the conviction is warranted for a lesser offence that is culpable homicide not amounting to murder punishable under section 304 part-i or II of IPC.
11. The main contention raised by the learned counsel for the appellants was that the case of the appellants fell squarely within exception 4 to section 300 ipc which reads as under:-
Exception 4- Culpable homicide is not murder, it if is 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.
12. It was contended that the incident in question had taken place at spur of the moment resulting in a sudden fight without any premeditation and in fact at the beginning of the fight neither Randhir Singh nor the deceased Ajit were present at the spot. We find considerable force and merit in the submission of the learned counsel for the appellants. As per the prosecution case, on 29th May, 1993 at about 8.40 p.m the complainant Subhash Chand and PW Satish Kumar were coming from the village Bakhtawarpur on a two wheeler scooter after meeting their sister at village Jyonty. After the complainant Subhash Chand and Satish Kumar had reached at bus stop (Bus stop of village Bakhtawarpur), the accused appellant No. 4 Sudesh Kumar asked Satish Kumar why he was not returning his money since several days and on this, Satish had immediately paid Rs. 250/- to the accused Sudesh. After receiving the sum of Rs. 250/- the accused Sudesh Kumar demanded back the balance amount of Rs. 20/- and when the said amount of Rs. 20/- was not returned by Satish Kumar then accused Mukesh started abusing in the name of sister and pushed him aside. Sudesh, then challenged him to do whatever he could but he would not return him the balance amount of Rs. 20/-. The complainant Subhash had tried to intervene to reconcile the dispute but without paying any heed to his intervention, the accused Sudesh Kumar picked up a brick lying nearby and tried to hit that brick to PW Subhash. Subhash somehow saved himself from the blow of the brick and then Sudesh brought a danda from a nearby Ravi Tent House and attempted to hit Subhash with that danda. Subhash got hold of that danda and in the meanwhile the other co-accused Randhir Singh and Naresh Kumar armed with lathi came running to the said place and on reaching at the spot, accused Randhir hit complainant Subhash with lathi on his head, as a result of which, Subhash fell down on the ground. When he tried to get up from the ground, accused Naresh gave him a lathi blow on his shoulder from the back side. It is during this period Satish had called Ajit, brother of the complainant Subhash Chand from the ‘gher’. Ajit reached at the spot and intervened in the matter to save Subhash from the hands of the accused persons but by that time, another co-accused Ramesh also had reached there at the spot. Further the case of the prosecution is that accused Randhir had given a lathi blow on the waist of Ajit and thereafter accused Naresh caught hold of Ajit from his left side and accused Mukesh caught hold of Ajit from his right side and accused Ramesh grabbed Ajit from behind and accused Randhir shouted and exhorted his son Sudesh by saying “MAAR SALE KO, JAAN SE KHATAM KAR DE” and thereafter, accused Sudesh took out a knife from the right side of his pant and stabbed Ajit on the left side of his chest.
13. The aforesaid narration, in our view, amply demonstrates that in the very beginning the fight had taken place between Subhash Chand and Satish Kumar on one hand and Sudesh Kumar and Mukesh Kumar on the other. Indisputably, Ajit who ultimately became victim of the said crime was nowhere available at the scene of crime as he had joined later after being called by Satish Kumar from the ‘gher’. Similarly, accused Randhir Singh, Naresh Kumar and Ramesh from the side of the accused persons had also joined later in the fight with the complainant party.
14. In the background of such facts, it is unfathomable to comprehend that there was a premeditated plan or there was a common intention on the part of the accused persons to murder Ajit. The prosecution has failed to place on record any material or to lead any evidence to show any kind of previous enmity between the parties which could prompt or motivate the appellants to carry out assassination of Ajit. The prosecution has also failed to bring on record any material evidence to show that the accused Randhir Singh was aware that the accused Sudesh was carrying knife in his pant. The extortion on the part of Randhir Singh would not necessarily mean that he wanted Sudesh Kumar to kill Ajit with the sharp edged weapon. It is an admitted fact that the accused Sudesh Kumar had lifted a brick so as to hit Subhash and thereafter he had gone to bring a danda from a nearby Ravi Tent House. It is also an admitted fact that the deceased had received one stab injury on the left side of his chest below the nipple with a sharp edged weapon. The cumulative effect of the facts and circumstances of the present case, in our opinion, clearly attracts exception 4 to section 300 ipc instead of attracting Section 302 IPC.
15. In the scheme of penal code, ‘culpable homicide’ is genus and murder is its specie. All murders are culpable homicide but not vice versa. Section 299 of the Indian Penal Code recognises three types of culpable homicides. First one may be culpable homicide of the first degree. This grave form of culpable homicide is defined in Section 300 IPC as murder; the second may be termed as culpable homicide of the second degree, which is punishable under first part of Section 304 IPC; the third form of culpable homicide is of third degree, which is considered to be the lowest type of culpable homicide and is punishable under Section part II of Section 304 IPC.
16. In a very recent judgment of the Apex Court, Ankush Shivaji Gaikwad v. State Of Maharashtra., 2013 (6) SCALE 778, the distinction between the offence punishable under Section 302 IPC and those punishable under Part I and II of Section 304 IPC has been eloquently discussed after giving a reference of many other significant decisions of the Apex Court in the past. Relevant Para of the said decision is reproduced as under:-
“9. It was argued that the incident in question took place on a sudden fight without any premeditation and the act of the Appellant hitting the deceased was committed in the heat of passion upon a sudden quarrel without the Appellant having taken undue advantage or acting in a cruel or unusual manner. There is, in our opinion, considerable merit in that contention. We say so for three distinct reasons. Firstly, because even according to the prosecution version, there was no premeditation in the commission of the crime. There is not even a suggestion that the Appellant had any enmity or motive to commit any offence against the deceased, leave alone a serious offence like murder. The prosecution case, as seen earlier, is that the deceased and his wife were guarding their Jaggery crop in their field at around 10 p.m when their dog started barking at the Appellant and his two companions who were walking along a mud path by the side of the field nearby. It was the barking of the dog that provoked the Appellant to beat the dog with the rod that he was carrying apparently to protect himself against being harmed by any stray dog or animal. The deceased took objection to the beating of the dog without in the least anticipating that the same would escalate into a serious incident in the heat of the moment. The exchange of hot words in the quarrel over the barking of the dog led to a sudden fight which in turn culminated in the deceased being hit with the rod unfortunately on a vital part like the head. Secondly, because the weapon used was not lethal nor was the deceased given a second blow once he had collapsed to the ground. The prosecution case is that no sooner the deceased fell to the ground on account of the blow on the head, the Appellant and his companions took to their heels - a circumstance that shows that the Appellant had not acted in an unusual or cruel manner in the prevailing situation so as to deprive him of the benefit of Exception 4. Thirdly, because during the exchange of hot words between the deceased and the Appellant all that was said by the Appellant was that if the deceased did not keep quiet even he would be beaten like a dog. The use of these words also clearly shows that the intention of the Appellant and his companions was at best to belabour him and not to kill him as such. The cumulative effect of all these circumstances, in our opinion, should entitle the Appellant to the benefit of Exception 4 to Section 300 of the Indian Penal Code.”
17. It will be also useful here to refer to the judgment of the Apex Court in the case of Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh, (2006) 11 SCC 444, wherein the Court has observed that:
“18. … the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.”
18. In Sunder Lal v. State Of Rajasthan, 2007 (6) SCALE 649, the two accused armed with Gandasi and a lathi respectively had inflicted one blow on the head of the deceased with a Gandasi and a lathi respectively and several injuries on the hands and the legs with the Gandasi and the stick; the circumstances were that the intention to kill the deceased was found wanting and in the background of this fact, the Supreme Court took a view that the attack being at a spur of the moment and indiscriminate, constituted an offence of culpable homicide not amounting to murder punishable under section 304 part-i IPC.
19. In another decision of the Supreme Court in the case of Kanda Swami v. State of Tamil, reported in 2008 10 SCALE) 315, a knife was indiscriminately used as a weapon of offence causing a large number of incised wounds on the deceased. By taking note of the fact that the deceased was not the target and he had intervened in a fight between a father and a son on the one side and the accused on the other and in the process became a target of the assault, the Supreme Court took a view that the offence committed was culpable homicide not amounting to murder punishable under Section 304 Part I IPC.
20. The circumstances of the present case are also similar to the facts of the two cases cited above. Here also the deceased Ajit entered into the scene of the crime later while the fight was going on between the complainant Subhash Chand and Satish on one hand and the accused persons Sudesh and Mukesh on the other hand. It is quite shocking to find that a non-return of balance amount of Rs. 20/- by accused Sudesh to Satish, ultimately led to the murder of Ajit, a young married man of about 25 years of age on the date of the commission of the offence. It was primarily the arousal of sudden passion and then to show one's might and supremacy over the other that led to the death of Ajit. The actual sufferer must be the deceased's young widow, parents and other family members. Having said this, the only silver lining which gives an advantage to the appellants/accused persons to escape from the rigour of Section 302 IPC is that they had no motive or premeditated plan to murder any person including the deceased Ajit and the fight between the groups took place on the spur of the moment. Thus, the appellants/accused persons are held liable for committing the offence of culpable homicide not amounting to murder under section 304 part-i IPC.
21. On the issue of sentence to be inflicted upon these appellants, we note that all the appellants have already undergone a sentence of about 7 - 7 ½ years. Nominal roll do not evidence their involvement in any other offence and do not even raise any doubts on the conduct of the appellants during their period of incarceration. We have been informed that even after granting bail the appellants were not found involved in any criminal activity and they are leading their respective lives peacefully with their family members.
22. Taking into consideration the individual profile of these appellants as stated above, we are of the view that the sentence already undergone by these appellants would be sufficient to meet the ends of justice. We are also of the view that the appellants must be burdened to pay a reasonable amount of compensation in terms of Section 357 of the Code of Criminal Procedure so as to compensate the parents and widow of the deceased and looking into the status of the appellants, we feel that these individuals shall pay a compensation amount of Rs. 25,000/- each to the parents and the widow of the deceased within a period of one month from the date of this order.
23. Present appeal filed by the appellants is accordingly disposed of modifying the conviction of the appellants from that of punishable under Section 302 IPC to that of Part-I of Section 304 IPC. The order of conviction dated 22.10.1997 and order of sentence dated 24.10.1997 whereby the learned Additional Sessions Judge convicted the appellants u/s 302/34 of IPC and sentenced them to imprisonment for life respectively are set aside. The appellants are convicted under Section 304 Part I instead and sentenced to the period already undergone by them. The order of conviction and sentence u/s 323/34 of IPC is upheld.
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