Point of Law:
Occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302. Equally for attracting Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4.

JUDGMENT :

Ajit Singh, J.

1. This criminal appeal has been filed against the judgment and order dated 24.1.2012 passed by Addl. Sessions Judge (Ex. Cadre), Mahoba in S.T. No. 115 of 2010 (Ram Het and others vs. State of U.P.), under Sections 302, 325 and 323 I.P.C., P.S. Charkhari, district Mahoba, whereby the accused-appellants have been convicted for the offence under Section 302 IPC and sentenced to life imprisonment with fine Rs. 5,000/and in default of payment of fine, the appellants have to undergo six months rigorous imprisonment; convicted for the offence u/s 325 IPC and sentenced to undergo three years R.I. with fine of Rs. 1,000/and in default of payment of fine, the appellants have to undergo one month R.I.; and also convicted for the offence u/s 323 I.P.C. and sentenced to undergo six months rigorous imprisonment.

2. In brief, the case of the prosecution starts from the FIR lodged by complainant Smt. Puniya wife of Kamta, resident of Mohalla Soharyab, Kasba and police station Charkhari, district Mahoba, alleging therein that on 15.10.2010 at about 6:00 p.m. at the doorstep of Nathu Prajapati, her husband Kamta, son Hariram and daughter Jaidevi and she herself were attacked with lathidanda by Ramhet and Rameshwar sons of Maiyadeen Prajapati, residents of Soharyab, Kasba Charkhari and two other persons namely son of Balli and son of Jaggu, residents of Village Salat. It was also mentioned in that report that her husband received injuries in his head and became unconscious and she had brought her injured husband to the police station. The chick report of the FIR was scribed by constable Dashrath Singh, G.D. entries were made. Initially the report was lodged under Sections 308 and 323 I.P.C. as Crime no. 1702 of 2010 and when death of the complainant's husband had taken place, Section 304 I.P.C. was also added. After lodging of the report the investigation started and after completion of investigation, the Investigating Officer had submitted chargesheet against four accused persons namely, Ramhet and Rameshwar sons of Maiyadeen Kumhar, Rajesh and Ramhetu son of Brij Lal. The cognizance was taken by the Magistrate and considering that the case was triable by the Sessions Judge, it was committed to the Court of session. The sessions court charged the accused under Sections 302, 308 and 323 I.P.C. Accused Ramhet son of Brij Lal was declared juvenile and his case was separated and sent to the Juvenile Justice Board and trial of three accused namely herein, Ramhet, Rameshwar and Rajesh commenced.

3. The prosecution, in order to prove its case, examined nine witnesses. PW1 Puniya (informant), PW2 Jai Devi daughter of the complainant, PW3 Hari Ram son of the complainant, PW4 Dashrath Singh, PW5 S.I. Harbansh Singh (Investigating Officer), PW6 D.K. Sullere, PW7 Dr. Devendra Singh Rajpoot, PW8 Anurag Purwar and PW9 Ram Sukh Verma.

4. The prosecution has examined PW1 informant Puniya, wife of deceased Kamta who has deposed that on 15.10.2010 at about 6:00 p.m., her husband Kamta was sitting at the doorstep of Nathu Prajapati. Rameshwar asked Kamta that what was he seeing ('kya dekh rahe ho') and at the very time accused persons namely, Rameshwar, Ram Het sons of Bhaiyadeen, Rajesh and Ram Het sons of Brij Lal ran towards the deceased. They were armed with lathi. Rameshwar assaulted her husband with lathi on his neck, thereafter he hit on his head, as a result of which deceased fell down on the ground. Ram Het son of Bhaiyadeen and Ram Het son of Brij Mangal also attacked with lathies on the head of deceased. Rajesh attacked on his head with lathi. When the informant along with her daughter Km. Jagdevi and son Hari Ram reached at the spot to save her husband then all the accused persons also assaulted them with lathidanda, as a result of which PW1 sustained injuries in her head and also got fractured her both hands. Her daughter Km. Jai Devi and son Hari Ram also sustained injuries. In this incident her husband succumbed to the injuri