An incident occurring at the spur of the moment during a free fight, without premeditation or an intention to cause death, qualifies for the Exception 4 of Section 300 IPC, resulting in conviction under Section 304 Part II IPC rather than murder.

Judgment

(Per Hon’ble Mr. Justice Mahendar Kumar Goyal)

This Criminal Appeal is directed against the judgment dated 04.04.1996 passed by the learned Sessions Judge, Jaipur District, Jaipur (for brevity “the learned Trial Court”) in Sessions Case No.77/1992 whereby, while acquitting the accused-appellants (for short “the appellants”) of the charges under Sections 147, 452 and 302/149 IPC, they have been convicted and sentenced as under:-

Under Section 302 IPC: Rigorous life imprisonment and fine of ₹100/-; in default whereof, one month’s rigorous imprisonment.

Under Section 323 IPC: Fine of ₹500/-; in default whereof, three months’ simple imprisonment.

The relevant facts in brief are that on the Parcha Bayan (Ex.P10) of Laxmi Narain @ Pappu dated 25.09.1992 made at about 4.15 PM, an FIR No. 232/1992 came to be registered at Police Station Chaksu, District Jaipur (Rural) for the offence under Sections 147, 452, 382, 307 and 323 IPC. It was alleged in the FIR that on that very day, at about 12.00 PM, the appellants along with co-accused person demolished wall of his house, came armed with lathis and inflicted injuries to him as also to his father. However, on account of death of Roopnarayan during investigation, Section 302 IPC was added. After investigation, the appellants were charge-sheeted along with co-accused Gopal, Tulsiram, Kanaram and Lalaram for the offence under Sections 147, 149, 452, 323 and 302 IPC. Charges under Sections 147, 452, 323, 302 and in alternative, under Section 302/149 IPC were framed against all the accused persons including the appellants. Lalaram expired during trial and therefore, vide order dated 13.09.1995, proceeding was dropped against him. After trial, while co-accused Gopal, Tulsiram and Kanaram were acquitted of the charges framed against them, the appellants have been convicted and sentenced, as stated hereinabove.

At the threshold, learned counsel for the appellants confined her challenge to the impugned judgment to the extent of their conviction under Section 302 IPC. She would submit that since, the incident occurred at spur of the moment, without any premeditation and they acted in right of their private defence, the offence would not travel beyond the scope of Section 304 Part II IPC.

Inviting attention of this Court towards the statement of Phooli (PW-3), Chhotu Khan (PW-6) and Dilip Sharma (PW-12), she contended that they have stated in unison that the First Information Report was lodged by Phooli at Police Station at about 2.45 PM but, the prosecution suppressed the same and relied upon the Parcha Bayan of injured Laxmi Narain @ Pappu recorded at about 4.05 PM as the first information which was hit by Section 162 Cr.P.C. Referring to and relying upon the testimony of injured eye witness and other eye witnesses specially, that of Ramkaran (PW-8), she submitted that the incident occurred at spur of the moment without any premeditation and it was a case of free fight in which persons from both sides have received injuries but, the prosecution suppressing the true genesis, has given it the colour of murder. She also contended that the incident has occurred inside their property as is revealed from the prosecution testimony and also from the fact that the learned trial Court has acquitted them of the charge framed against them under Section 452 IPC. Further, inviting attention of this Court towards the deposition of Phooli (PW-3), learned counsel asserted that she has categorically stated therein that giving up Gainti (pickaxe) and Fawda (spade), which they were holding for digging the foundation in their property, they inflicted blows with lathis which they picked from the place of incident itself. She also contended that recovery of Lathis was rendered doubtful inasmuch as, while, the injured eye witness has stated that the Lathis used by the appellants were taken away by the Investigating Agency; but, in the site plan, the same were reported to be existing at the place they were befo