V.K. Bali, J.
1. By this order, we propose to decide Crl. Appeal No. 63-DB of 1996 that has been filed by Tirthi Lal and Bharti Lal challenging order of conviction and sentence recorded by the Addl. Sessions Judge, Gurdaspur, dated January 19, 1996, vide which, whereas, Tirthi Lal has been held guilty under S. 302, IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/- or in default of payment of fine, to further undergo R.I. for two years, his brother Bharti Lal has been held guilty u/S. 326 read with S. 34, IPC and sentenced to undergo R.I. for three years as also to pay a fine of Rs. 1000/- or in default of payment of fine, to further undergo R.I. for six months as also Crl. Appeal No. 163-DBA of 1997 that has been filed by the State of Punjab against Bharti Lal who has since been acquitted by the learned Sessions Judge under S. 302, IPC as also Crl. Revision No. 227 of 1996 filed by Jugwant Krishan, son of the deceased Ram Ditta, for holding Bharti Lal also guilty under S. 302 read with S. 34, IPC and to enhance the sentence and fine imposed upon Tirthi Lal and Bharti Lal.
2. Ram Ditta, father of Jugwant Krishan died on June 23, 1992. The case of the prosecution is that he was intentionally killed by the appellants Tirthi Lal and Bharti Lal at about 11-30 a.m. on June 23, 1992 in front of the shop owner by the deceased and which was on rent with the appellants. Ram Ditta received a knife blow in his stomach and on account of the injuries sustained by him, he was rushed to the hospital where he lodged FIR at 6-30/7-30 p.m. on June 23, 1992 which came to be recorded by Joginder Singh SI. He stated that he was residing in Mohalla Nangal Kotli, Gurdaspur. About 13/14 years ago, he had come on pension from the Defence Account Department and had constructed his house in Mohalla Nangal Kotli, Gurdaspur. He had constructed four shops in front of his house and had given the same on rent. Out of the said shops, one shop was given on rent to Tirthi Lal son of Durga Dass, appellant herein, for the last about two years. At the time of renting out the shop, it was agreed with Tirthi Lal that he (deceased) would remove the projection in front of the shop and fittings inside the shop. On the eventful day at about 11-30 a.m., he along with his son Jaswant Krishan and his grand son Vir Vikram was removing the projection and in the meantime Tirthi Lal and his brother Bharti came there. Just on their arrival, Bharti caught hold of him by arms and Tirthi Lal inflicted a dagger blow to him which hit him on the left side of this abdomen just above the hip. He raised an alarm killed-killed'. His son Jugwant Krishan and his grand son Vir Vikram witnessed the whole occurrence. On his raising an alarm, Tirthi Lal and Bharti fled away from the place of occurrence together with dagger. Madan Lal son of Babu Ram got him admitted in the civil Hospital, Gurdaspur for treatment. As Ram Ditta died, his statement recorded before the police became a dying declaration.
3. The special report with regard to the incident reached the Ilaqa Magistrate, Gurdaspur on June 24, 1992 at 6-30 p.m.
4. With a view to substantiate its case, the prosecution examined P. W. 1 Dr. Sham Lal Mahajan, Medical Officer, Civil Hospital, Gurdaspur, as P.W. 1. He stated that on June 24, 1992 at 6-40 p.m. he conducted post mortem examination on the dead body of Ram Ditta and found following injury on his person;
'1. A stitched wound having two stitches 3 cm long directed obliquely in the left ingunial region 4 cm away from the anterior superior iliac spine towards medial side.'
On dissection of the wound, the doctor found that the wound was measuring 3 cm. x 0.5 cm x deep upto abdominal cavity. Margins were regular and clean cut. Subcutaneous haematoma was present. Structures in wall of abdomen were also cut and haematoma was present. On opening abdominal cavity, there was a collection of fluid (digested material) mixed with blood. Mesentric blood vessel and misentry was cut corresponding to wound direction. A cut 2 cm x 0.5 cm with inflined margins was present on small intestines (ileum). It was directed transversely, i.e., along with the length of intestine and on pressing intestine, digestive material came out. Heamatoma was present in pelvic cavity. On further dissection of abdomen, a branch of internal iliac blood vessels was found injured and retroperitoneal haematoma was present. In the opinion of the doctor, death was due to haemorrhage and shock due to injury to blood vessels of abdomen. The injury was ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injury and death was about 30 hours and between death and post mortem about four hours.
5. Jugwant Krishan, PW. 2 and his son Vir Vikram, PW. 3 fully supported the prosecution case. PW. 4 J. S. Dhanjal, Draftsman only stated that on October 9, 1992 he prepared a scaled site plan, Ex. PE with correct marginal notes on the demarcation given by Jugwant Krishan. P.W. 6 S.I. Prabhdev Singh identified the signatures of S.I. Joginder Singh on the statement of Ram Ditta which formed the basis of FIR. The necessity to examine S.I. Prabhdev Singh, P.W. 6 had arisen as the one who had the recorded the statement of Ram Ditta, namely Joginder Singh, S.I., was no more available and could not be examined. P.W. 9 LC Gurwinder Pal Singh stated that on June 24, 1992 when the case was converted from 324/34, IPC to 302/34, IPC, he had carried the special report and delivered the same to the Ilaqa Magistrate at 6-05 p.m.
6. When examined under S. 313, Cr.P.C., appellants denied the incriminating material put to them and stated that they were innocent. They examined in defence DW. 1 Arvind Sub, Handwriting and Finger Prints Experts. We have not given in detail the evidence of the witnesses for the sole reason that learned counsel for the appellants has confined his arguments only to the nature of offence, presumably for the reason that in view of the statements made by the eyewitnesses, and the dying declaration of Ram Ditta, nothing much could be argued to earn a clean acquittal.
7. On the nature of offence, the case as projected by Mr. Bhullar learned counsel for the appellants-Tirthi Lal and Bharti Lal is that it was a case of sudden quarrel, the deceased along with his son and grand son had gone to the shop rented out to the appellants with a view to remove the projection in a wholly illegal manner and that there was exchange of hot words between them and the complainant party and that there was no pre-planning or premeditation and that the blow given by Tirthi Lal was not repeated. With a view to substantiate what has been referred to above, learned counsel contends that the shop in question was let out to the appellants two years prior to the date of occurrence and no evidence at all could be brought on records to show that the projection over the shop could be removed by the landlord at any time. With a view to further strengthen the argument, noted above, it is being argued that in case projection belonged to the landlord and the same could be removed as agreed to on the date when the shop was rented out, there was no occasion for the complainant party to come two years after the shop was rented out. As a matter of fact, the landlord wanted the appellants to vacate the shop and inasmuch as they were reluctant to do so, he was trying to create all kind of hurdles in their way. The Court has been taken through the statements of the eye-witnesses, P.W. 2 Jugal Krishan and his son PW. 3 Vir Vikram. In the examination in chief itself PW. 2 has stated that his father was standing in front of the shop whereas his son was standing on the roof top of the shop for removing the projection. Tirthi Lal and Bharti Lal came out of the shop and exchanged hot words with his father and son. Bharati Lal was empty handed. He descended from the roof top of the shop. Bharti Lal caught hold of his father from his arms and Tirthi Lal inflicted knife blow on the abdomen of his father Ram Ditta. In his cross-examination PW. 2 stated that he had not intervened when there was exchange of hot words between Tirthi Lal and his father. He further stated that the appellants had not abused his father but he was simply objecting the removal of the projection. The exchange of hot words lasted 2-4 minutes. He further stated that nobody from the adjoining shops had come to the spot when Tirthi Lal and Ram Ditta were exchanging hot words. This witness also stated that he had stated before the Police in his statement that it was agreed between Ram Ditta and Tirthi Lal that Ram Ditta would be at liberty to remove the projection whenever he liked. However, since he had not stated so before the police, he was confronted with his statement, Ex. DA wherein it was not so mentioned. P.W. 3 Vir Vikram stated in his examination-in-Chief that there was exchange of hot words between Tirthi Lal and his grand father Ram Ditta.
8. In view of the evidence that has been referred to above, Mr. Bhullar, learned counsel for the appellants vehemently contends that it was a case of sudden fight, there was no premeditation and the appellants did not take undue advantage or acted in a cruel or unusual manner.
9. Mr. Dhaliwal, learned Deputy Advocate General, Punjab, assisted by Mr. B. R. Gupta, learned counsel for the complainant, however, Contends that Ram Ditta was an old man of 70 years and there was no occasion for the appellant Tirthi Lal to have kept a knife with him. The very fact that he had kept a knife with him was enough to conclude that he had intentionally caused death of Ram Ditta. He further contends that Bharti had caught hold of Ram Ditta and Tirthi Lal had given a knife blow which was further suggestive of the fact that Ram Ditta was intentionally done to death.
10. We have heard learned counsel for the parties and carefully scanned the evidence, reference where of has been made above. The shop was admittedly given on rent to the appellants two years prior to the date of occurrence as mentioned in the FIR lodged by Ram Ditta. No rent deed as such has been placed on records that might show the arrangement said to have been made with regard to removal of projection by the landlord at any time. The projection is necessary for a building, be it residential or commercial. These projection are required to save the building from rains etc. These are part of building and cannot be said to be a kind of furniture or fixture which can be removed at any time. There could be any arrangement between the landlord and tenant that the projection was belonging to the landlord and that he could remove the same at any time. That apart, if the landlord in the very inception, i.e., when the shop was rented out to the appellants, had made any such arrangement, there was no reason for him not to have removed the projection immediately after the shop rented out. An attempt to do so was made only after two years after the shop was given on rent. That supports the contention of learned counsel for the appellants that no such arrangement was ever arrived at between the parties. Further, PW. 2 had not made any such statement before the police and he tried to improve upon the prosecution case only at the time when he appeared in the witness box. As mentioned above, he was duly confronted with his statement recorded before the police Ex. DA. Insofar as this arrangement having been mentioned in the FIR is concerned, suffice it to say that Ram Ditta died and could not be cross-examined. From the facts, as have been detailed above, this Court is left with no choice but for to conclude that there was no arrangement between the parties that the projection can be removed by the landlord at any time. That being the position, it has necessarily to be held that Ram Ditta, his son and grand son had gone to remove the projection in a wholly illegal manner which resulted into exchange of hot words. It has been stated by P.W. 2 that Tirthi Lal had not abused his father and he was simply objecting to removal of the projection. The exchange of hot words had last 2 to 4 minutes. Exception (4) to S. 300, IPC can be invoked if four requirements are satisfied, namely, it was a sudden fight, (ii) there was no premeditation, (iii) act was done in a heat of passion and (iv) accused had not taken undue advantage or acted in a cruel or unusual manner. As has been held by the Apex Court in Surinder Kumar v. Union Territory Chandigarh, 1989 (2) CLR, 78 : (1989 Cri LJ 883) the cause of quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of Course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks in a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. The decision of the Supreme Court in Surinder Kumar's case (supra) has since been followed by this Court in Birinder Ram v. State of UT, Chandigarh, Cr. Appeal No. 77-DB of 1995, decided on September 3, 1997.
11. This Court is of the firm view that all pre-requisites of invoking exception (4) to S. 300, IPC are available in this case. From the facts of the case it is clear that hot words were exchanged between the appellants and deceased on account of provocation given by the deceased himself. Be that as it may, it, is clear that it is a case of sudden fight there was no premeditation and that Tirthi Lal had inflicted only one blow, not repeating the same, meaning thereby that he had not taken undue advantage or acted in a cruel or unusual manner.
12. In view of what has been said above, we partly allow Crl. Appeal No. 63-DB of 1996 filed by Tirthi Lal and Bharti Lal. The nature of injury described by the doctor is such that appellant Tirthi Lal has to be held guilty and convicted under S. 304, Part I of the Indian Penal Code. Initially, even though, learned counsel for the appellants argued that the nature of offence would not go beyond S. 304, Part II, but when confronted with the kind of injury as described by the doctor, PW. 1 which was a wound measuring 3 cm x 05 cm x deep up to abdominal cavity, he had to say that the case would fall under S. 304, Part I, IPC. That appellant Bharti Lal did not share the intention of Tirthi Lal for the offence committed by the latter, could not be disputed by learned counsel for the State. However, the fact that he had caught hold of Ram Ditta, is suggestive of the fact that he at least shared the intention of Tirthi Lal for an offence under S. 326 read with S. 34, IPC. He has rightly been held guilty and convicted under S. 326/34, IPC. In totality of the facts and circumstances of this case, we hold that appellant Tirthi Lal is guilty under S. 304, Part I, IPC and Bharti Lal is guilty under S. 326/34, IPC. The interest of justice would be fully met if Tirthi Lal is sentenced to undergo R.I. for a period of seven years and to pay a fine of Rs. 8000/- or in default of payment of fine to further undergo R.I. for one year and Bharti Lal is sentenced to undergo R.I. for a period of two years and to pay a fine of Rs. 2000/- or in default of payment of fine to further undergo R.I. for six months, under S. 326/34, IPC. So ordered.
13. In view of the fact that appeal preferred by Tirthi Lal and Bharti Lal has been partly allowed, there is no merit in the appeal preferred by the State and the revision preferred by Jugwant Krishna, which are dismissed. The revision petition is allowed, however, as referred to above, to the extent that fine has been enhanced as fully detailed above. The entire amount of fine, if realised, shall be paid to PW. 2 Jugwant Krishan, son of the deceased Ram Ditta.
14. Order accordingly.