Full Judgment
Falshaw, J.
1. Atma Singh appellant was tried by the Sessions Judge at Gurdaspur along with his father Kahan Singh and younger brothers Kartar Singh and Hazara Singh on a charge under Section 302 read with 34, Penal Code. In the event his father and brothers were, acquitted and he alone has been convicted under Section 302, Penal Code, and sentenced to death. We have before us his appeal and his case for confirmation of the sentence.
2. Although the whole of the prosecution story was denied by all the accused, who simply alleged that they had been implicated on account of enmity and put forward no kind of alternative explanation of the circumstances under which Shangara Singh deceased was killed, it is not now seriously contested that this event took place more or less in the circumstances alleged by the prosecution. It seems that Kahan Singh accused and Bhagat Singh, the father of Shangara Singh deceased, who are Jats of Vero Nangal, had same dispute about the irrigation of their lands. Thereare two outlets in the village, the eastern and western outlets, and formerly the lands of Kahan Singh had been watered from both these outlets but consolidation of holdings in the village had taken place and consequently the lands held by different owners wore somewhat different from their previous holdings and now a dispute had arisen regarding' whether Kalian Singh was now entitled to any water at all from the eastern outlet.
3. In order to settle this matter a so-called panchayat had been convened between 8 and 9 p.m. on 25-4-1954 at a place near the houses of both the accused and the deceased, and the persons who attended were apparently the cultivators of the village who were interested in the eastern outlet and included Bhagat Singh P. W. 4, Kundan Singh P. W. 1, Diwan Singh P. W. 5, Ishar Singh P. W. 6, Pritam Singh P. W. 7 and Pal SinghP. W. 8, as well as Kahan Singh and his eldest son Atma Singh accused, who are alleged to have kept in their possession a stick and a spear respectively while the meeting was going on. According to the evidence of the prosecution witnesses the discussion developed into an exchange of abuse between Bhagat Singh P. W. on the one side and Kahan Singh and Atma Singh on the other. At the sound of this exchange of abuse it is alleged that on the one side Kahan Singh's other two 'sons ran out of their house armed with sticks and on the other side Shangara Singh deceased came out of his father's house, and on Shangara Singh's arrival all the accused set on him, Atma Singh spearing him on the left sideof the chest while each of the others gave him a blow with his stick. Pal Singh P.W. 8 is said to have tried to intervene and the stick blow was aimed at him by Kartar Singh accused hut it missed him and the accused then ran away.
4. After the occurrence Shangara Singh was taken into his house and Kundan Singh went to a neighbouring village Rangar Nangal and brought Dr. Om Prakash P. W. 3 to attend to Shangara Singh. The doctor gave him an injection and advised his immediate removal to the hospital, but actually no attempt was made to take him to the hospital until early following morning and he is said to have died on the way. In the meantime Kundan Singh P. W. went to the Police Station, at Batala, 7 miles away, where his report was recorded at 5-20 a.m.
5. The medical evidence leaves no doubt that Shangara Singh died as the result of a spear injury on the chest under which the weapon had penetrated to a depth of 4 1/2 inches injuring on its way the left lung, the diaphragm and the stomach. He also had three bruises on the back, apparently the result of stick blows.
6. The police reached the spot, at about 10 a.m. on the morning of 26th of April, there being little in the way of investigation beyond the alleged recovery of sticks from the three accused who were acquitted and a spear from Atma Singh. Only the spear was sent for examination and it was found to be stained with human blood.
7. As I have said the accused simply denied the whole prosecution story and neither put forward any alternative theory nor produced any defence evidence.
8. The learned counsel for the appellant has not suggested that we should disbelieve the prosecution story to the effect that it was Atma Singh appellant who inflicted the fatal spear injury on Shangara Singh deceased. He has, however, tried to make out that the case fell not under Section 302 but under Section 304, Penal Code, by reason of the applicability of the Fourth Exception in Section 300, Penal Code, according to which culpable homicide does not amount to murder if it is committed in theheat of the moment and without premeditation and in the course of a sudden fight following upon a sudden quarrel.
Although it was not even suggested in the cross-examination of a single prosecution witness that when Shangara Singh came out of his father's house he was armed with a weapon of any kind, or that with any such weapon he attacked or tried to attack Atma Singh or any of the other accused, it is now suggested that this is in fact what probably happened, and it is argued that if in fact Shangara Singh was armed with any weapon and looked as if lie was about to attack Atma Singh, even if he did not actually aim any blow at him, this would make the occurrence a sudden fight within the meaning of the Exception.
9. In the first place, I am not prepared to accept the suggestion of the learned counsel for the appellant that things must necessarily or even probably have happened in this way.' It is the duty of any accused who is claiming the benefit of one of the Exceptions to make some attempt to establish the facts which would support his case and as I have said no prosecution witness was cross-examined on these lines.
Moreover apart from Bhagat Singh, the witnesses generally appear to be disinterested in the sense that no previous enmity against the accused is suggested. The only suggestion now raised in this behalf is that they might have had some partiality against the accused us being persons with an interest in the eastern outlet, but I do not attack much importance to this, nor do I consider that the witnesses arc to be regarded as interested unless it can he shown that they had some other reason for taking sides with Bhagat Singh against the accused in this matter.
I therefore do not see any sufficient reason for accepting the suggestion that Shangara Singh came to the spot armed with any weapon and adopted a threatening altitude.
10. I would, however, add that even if I had come to the conclusion that Shangara Singh must have come to the spot armed with some weapon for the purpose of protecting his father, if necessary, this would not be sufficient to make the affair a fight within the meaning of the Exception. The term 'fight' is not defined in the Code, but everyone knows what a fight is and that it takes two to make a fight. I would agree with the argument of the learned counsel for the appellant that it is not necessary that weapons should be used in a fight, and also that an affray can be a fight even if only one party in the fight is successful in landing a blow on his opponent.
I would, however, hold that in order to constitute a fight it is necessary that blows should be exchanged even if they do not all find their target, and I do not in the present case find any evidence to suggest that Shangara Singh aimed any blow at Atma Singh. I am, therefore, of the opinion that the case is not covered by the Fourth Exception and that it falls under Section 302, Indian Penal Code. It is, however, clear that Atma Singh speared Shangara Singh in the heat of the moment, and in the course of a sudden quarrel and that the murder was not premeditated, and in the circumstances, I do not consider that the extreme penalty is called for.
I would accordingly accept the appeal to the extent of setting aside the sentence of death and instead sentencing Atma Singh to transportation for life. The sentence of death is therefore not confirmed.
Bhandari, C. J.
11. I agree.