Judgment

FAZL ALI, J.:- In this appeal by special leave. Ram Swarup has been convicted under Section 302 of the Indian Penal Code by the High Court, which acquitted the other accused who were tried along with the other appellants. Briefly put, the prosecution case was that on 29th August. 1968 at about 4,00 p.m. Rattan Singh let loose 5 buffaloes who trespassed into the field of P.W. 4 Sukhi and appeared to have caused damage to the field. Thereafter, the buffaloes were caught hold of and impounded in the village cattle pound nearabout. This seems to have annoyed the accused persons who lay in wait for the complainants party and when at about 6.00 p.m. Ram Gopal and Sukhi passed near the scene of occurrence, the five accused then started remonstrating with them regarding the cause as to why their cattle had been impounded. Soon thereafter, the complainants party were joined by three others including the deceased Budha. It is admitted that excepting Budha, all other members of the complainants party werealso armed with lathies. After the complainants were joined by the others an altercation ensued in which the appellants and other accused are said to have assaulted the deceased and other persons. According to the prosecution, the appellant, Ram Swarup was armed with jaili, with which he gave a blow on the head of the deceased not with the jaili portion but only with the lathi portion. The Sessions Judge accepted the prosecution case in its entirety and convicted all the accused. In appeal. however, the High Court acquitted the other accused of the charge under Section 302/149, I.P.C. but convicted the appellant under Section 302, I.P.C only. The appellant then presented this appeal and after obtaining special leave, the appeal has now been placed for hearing before us.

2. Mr. Kohli, the learned counsel for the appellant submitted a short point before us. His contention was that on the facts found and proved it would appear that this was not a case of premeditated or deliberate murder by the appellant but the deceased died as a result of a mutual fight which developed at the spur of the moment without any premeditation. In these circumstances, it was pointed out that the case of the appellant could not fall within the purview of Section 302, I. P. C. at all and at the most the appellant could only be convicted under Section 304 Part I of the Indian Penal Code. In our opinion, the contention raised by the learned Counsel is well founded and must prevail. At page 61 of the paperbook, the High Court has found in very clear terms that it was not a case of premeditated assault on the deceased but one of mutual fight. In this connection the High Court observed as follows:-

"It is conceded on all hands that there was no previous enmity between the parties. It may also appear to be the common case that rounding up and impounding of cattle was the main cause that had made the parties resort to the use of implements of weapons of every day use. Budhas death was a turn in the events which could not have been intended or expected by every one taking part in the fight. The liability for Budhas death has therefore. been rightly fixed on individual basis and not vicariously."

At another place at page 62 of the judgment, the High Court finds thus:-

"Blows were raining freely on members of both the parties and the absence of any fresh injuries on the person of Deep Chand may appear significant."

3. Even the Sessions Judge at page 55 of the paper-book has come to a clear finding that the murder of Budha was not premeditated. In view of these findings, therefore, it cannot be argued with any show of force that the murder was a premeditated one and the accused had been lying in ambush for the purpose of murdering the deceased. The learned counsel, appearing for the State, has however submitted that the High Court has not disbelieved the case of ambush as put forward by the prosecution and its observation even at page 61 of the judgment seems to indicate