The central legal point established in the judgment is the application of legal provisions under Section 300 IPC, Exception 4 to Section 300 IPC, and Section 304 Part I IPC to determine the nature of the offence committed by the appellants.

Kailash Gambhir, J.

1. Challenge the in present appeal is the impugned judgment and order on sentence dated 24.7.2010 and 18.8.2010, respectively, passed by the learned Additional Sessions Judge whereby the appellants were convicted under Section 302 read with Section 34 IPC and sentenced to undergo imprisonment for life together with payment of fine of Rs. 25,000/- and in default thereof to further undergo simple imprisonment for 3 months each.

2. The case of the prosecution in brief is as under:

“The case of the prosecution is that on 04.04.2007 an information was received at the police control room from telephone number 9313522370 regarding the quarrel and stabbing in J.J Colony, C Block, Uttam Nagar pursuant to which DD No. 51A was recorded and ASI Jai Prakash reached the spot where he came to know that the injured was shifted to hospital by his family members and in the mean time ASI Mamur Khan along with staff also reached the hospital where he found the dead body of Nand Kishore @ Nandu. On receipt of DD No. 51 A SI Suresh Chand reached the spot and then DDU hospital where he recorded the statement of Kishan Lal father of the deceased. Kishan Lal informed the police that at 09:30 p.m one Ballu came to their house and told his son that some boys were calling him, on which his son Nandu went with Ballu. At about 10:30 pm, Kishan Lal received information from his brother Phool Chand that some boys of B-Block were beating his son. Kishan Lal went to the spot on motorcycle and his brother, Phool Chand followed him on another motor cycle and on reaching the spot Kishan Lal saw that Nandu was lying on floor and accused Ballu was holding him from hairs, accused Nandu was holding him by hands and accused Mohd. Guddu was holding a broken glass tumbler and was hitting Nandu on his neck and side of the back and accused Arif Ahmed was standing at a little distance.”

3. At the very outset, Ms. Saahila Lamba, learned counsel appearing for the appellants submitted that the appellants would be challenging the conviction and order of sentence only to the extent that the alleged offence committed by the appellants would not fall under Section 302 IPC but under Section 304 Part I IPC. Additionally, qua appellant No. 1 Narender, contention raised by the counsel was that the role, which is ascribed to appellant No.1, Narender was that he caught hold of the deceased, by his feet while the deceased was being assaulted by appellant No. 2 Mohd. Guddu and, therefore, it cannot be said that appellant No.1 shared common intention with appellant No. 2 to commit the murder of the deceased. In order to bring home the point that offence, which would be made out against the appellants would be culpable homicide not amounting to murder punishable under Section 304 Part I IPC, submission made by learned counsel for the appellants can be outlined as under:-

(i) None of the witnesses, produced by the prosecution, disclosed as to how and in what manner the dispute between the deceased and the accused persons started and, therefore, the genesis of the incident remained a mystery.

(ii) The stand of the prosecution and the defence fully supports the fact that the appellants and other accused were unarmed at the time of the commission of the crime and the weapon of the offence was a broken glass tumbler, taken by the accused persons from nearby juice shop belonging to Jaffar Ali PW-7.

(iii) The use of broken glass tumbler, as a weapon of offence, clearly proves that a fight between accused persons and the deceased was sudden, without any premeditation, without their being any intention on the part of the accused to commit the murder of the deceased. Furthermore the fact of glass tumbler, being picked up from a nearby juice shop, is a clear pointer to the fact that some sudden quarrel/fight had taken place between the appellants and the deceased and it was out of anger or provocation that appellant No. 1 hit the deceased with broken glass tumbler.

(iv) Out of 9