Bhola Ram and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—On 16.1.2003, at about 1:00 or 1:30 PM, in the revenue state of village Bhanokhar, ladies belonging to the complainant party and the accused side had gone at the village well to fetch water. The ladies had an altercation. The situation went out of hand and both sides suffered injuries. The complainant party suffered more loss. One person Moti Ram lost his life and six persons from the complainant''s side, namely Mahesh (P.W.6), Smt. Laxmi (P.W.12), Smt. Guddi (P.W.13), Smt. Beena (P.W.14), Smt. Ramjati (P.W.17) and Kishore (P.W.18) suffered injuries. From the side of accused, Ghanshyam, Jai Lal, Madan Lal and Prakash s/o Khayali had suffered injuries.

The complainant party named fourteen persons as accused in the written report (Exhibit-P/4) lodged by Mahesh (P.W.6) son of deceased Moti Ram. The investigating agency submitted the charge-sheet against eight persons and kept the investigation pending against remaining six persons. Eight persons, namely Bhola Ram, Ghanshyam, Prakash Chand all sons of Khyali Ram, Madan Lal s/o Sukhram, Prakash Chand s/o Mohan Lal, Ummedi Lal and Mannu Ram, both sons of Harakya Ram and Smt. Santo wife of Madan Lal, were tried in Sessions Case No. 7/2004 (62/03) by the court of Additional Sessions Judge (Fast Track), Laxmangarh, District Alwar, and vide the impugned judgment dated 16.12.2005, Madan Lal s/o Sukhram and Smt. Santo wife of Madan Lal were acquitted and remaining six accused were held guilty of offence of murder.

To be precise, Bhola Ram s/o Khayali Ram was substantively convicted for the offence under Sections 302, 307 and 325 IPC. Ghanshyam s/o Khyali Ram was substantively convicted for the offence under Section 324IPC. The remaining accused were convicted for the offence under Sections 302, 307, 325 and 324 IPC with the aid of Section 149IPC. All accused were substantively convicted for the offence under Section 452 and 148 IPC. Furthermore, accused Parkash Chand s/o Khayali Ram and s/o Mohan Lal, Ummedi Lal and Mannu Ram sons of Harkya Ram were substantively convicted for offence under Section 323 I.P.C. and remaining accused Bhola Ram and Ghanshyam were also convicted for the offence under Section 323 read with Section 149 IPC. Having convicted the appellants for the aforesaid offences, the trial court vide a separate order of even date, convicted them as under:-

U/s 302 or 302/149 IPC- to undergo life imprisonment and to pay a fine of Rs. 5,000/- each, in default of payment for fine, to further undergo one month R.I.

U/s 307 or 307/149 IPC- to undergo ten years R.I. and to pay a fine of Rs. 5,000/- each, in default of payment of fine, to further undergo one month R.I.

U/s 325 or 325/149 IPC- to undergo three years R.I. and to pay a fine of Rs. 2,000/- each, in default of payment of fine to further undergo one month R.I.

U/s 452 IPC- to undergo three years R.I. and to pay a fine of Rs. 5,00/- each, in default of payment of fine, to further undergo one month R.I.

U/s 148 IPC- to undergo two years R.I. and to pay a fine of Rs. 5,00/- each, in default of payment of fine, to further undergo one month R.I.

U/s 324/149 IPC- to undergo one year R.I. and to pay a fine of Rs. 5,00/- each, in default of payment of fine, to further undergo one month R.I.

U/s 323 or 323/149 IPC- to undergo six months R.I. and to pay a fine of Rs. 5,00/-, in default of payment of fine, to further undergo one month R.I.

Aggrieved against their conviction and sentence, Bhola Ram, Ghanshyam, Prakash Chand s/o Khayali Ram, Prakash Chand s/o Mohan Lal, Ummedi Lal and Mannu Ram have filed D.B. Criminal Appeal No. 22/2006.

After the conviction was pronounced and sentence was awarded to these six appellants, the investigating agency submitted charge-sheet against those six accused persons against whom the investigation was kept pending. They were tried in Sessions Case No. 53/2011 by the court of Additional Sessions Judge, Laxmangarh, Alwar and vide the impugned judgment dated 12.6.2012, Yadram was substantively convicted for the offence under Section 302 IPC and remaining accused namely Kishori, Kripal, Jail Lal, Smt. Saroj wife of Prakash Chand and Sunita were convicted for the offence under Section 302 with the aid of Section 149 IPC. All accused were also convicted for the offence under Section 148, 325/149, 324/149, 323 and 452 IPC. Aggrieved against the conviction pronounced and sentence awarded vide impugned judgment dated 12.6.2012, two separate appeals have been preferred. Yadram has filed D.B. Criminal Appeal No. 581/2012 and Kishori, Kripal, Jai Lal, Saroj and Sunita have instituted D.B. Criminal Appeal No. 506/2012.

Since all the three appeals have arisen from the same occurrence, they have been heard by us together, though they will be decided separately, but simultaneously. First, we shall proceed to decide D.B. Criminal Appeal No. 22/2006, which was filed first in time.

The criminal proceedings were set into motion on the basis of written report (Exhibit-P/4) submitted by Mahesh (P.W.6) before Ishaq Mohammad (P.W.20), who was then posted as ASI at Police Station Kherli. The written report (Exhibit-P/4) on the basis of which formal FIR (Exhibit-P/5) was registered, when translated into English, reads as under:

"To

SHO Sb. Police Station Kherli

Sir,

It is submitted that yesterday on 16.3.2003, at about 1:00 - 1:30 PM, my bhabhi (brother''s wife) Guddi had gone to Jat Wala Well for bringing water. At the well, Sunita daughter of Mohan Lal and Saroj wife of Prakash had an altercation with her over taking the water. They gave beating to Guddi. My bhabhi, Guddi returned to the house. After sometime, because of the verbal duel between the ladies, Bhola Ram, Jay Lal, Ghanshyam, Prakash s/o Khayali Ram, Yadram s/o Jhandu, Madan s/o Sukhram, Prakash s/o Mohan Lal, Ummedi, Mannu sons of Harakya, Kripal, Kishore sons of Bharosi and their wives Santo w/o Madan, Saroj w/o Prakash, all residents of village came armed with lathis, Farsa, sword, hockey and Tanchiya. They came to our house and opened the attack and started beating us. My father, Moti Ram was smoking Hukka while sitting in the courtyard. He was encircled by them. Bhola Ram, Ghanshyam, Yadram and Madan caused him injuries. When I, my brother Kishore, my sister Laxmi, my mother Ramjati and my bhabhi, Guddi came forward to save my father, all accused attacked us and gave merciless beating to us with lathis, Farsis and Tanchiya. My father, Moti Ram, brother Kishore, my mother Ramjati, my sister Laxmi and my bhabhi Guddi suffered injuries. They after giving beating to us, left us injured at the spot and ran away. The occurrence at the spot was witnessed by Bhagwan s/o Feli, Ram Karan s/o Sampat, Hariram s/o Har Govind and Birbal s/o Har Govind Meena etc. The condition of my father, brother, sister and mother became precarious. Immediately, we brought them in marshal jeep to hospital at Kherli. Doctor Saheb, immediately seeing their condition to be bad, referred them to Jaipur. All were got admitted in the SMS Hospital, Jaipur. During treatment in the night, my father expired. The report is presented. Action be taken. They had earlier committed the murder of Girraj Meena. Therefore, it is requested that action be taken against them.

Applicant Mahesh s/o Moti Ram by caste Meena, R/o Bhanokhar."

A perusal of the above written report reveals that the occurrence had taken place on 16.1.2003 at 1:30 PM. The written report was submitted on 17.1.2003 at 6:15 PM. The case was also registered at the same time and Special Report reached the Illaqa Magistrate on 18.1.2003 at 12:00 noon.

Before we take into account the statements of the witnesses, it will be necessary for us to notice the medical evidence.

Dr. Jitendra Bundel (P.W.7) on 16.1.2003 was posted at Community Health Center, Kherli, as Medical Officer. On the said date, as per Injury Report (Exhibit-P/7) he had examined Smt. Guddi (P.W.13) and had found the following injuries on her person:-

"(i) Abrasion with swelling - 3.0cm x 2.0cm, right hand dorsal surface.

(ii) Abrasion with swelling - 2.8cm x 2.0cm, right hand dorsal surface, 5.0 cm above from Injury No. 1.

(iii) Lacerated wound with blood and serum - 2.5cm x 1.5cm, muscle deep, left parietal region.

(iv) Bruise Red in colour - 5.0cm x 2.0cm, left arm middle and upper.

Injury No. 2 on the right dorsal surface was declared grievous. Other injuries were found simple.

On 18.1.2003 at 2:30 PM, Dr. Jitendra Bundel (P.W.7) had examined Smt. Beena wife of Kamal Singh and as per Injury Report (Exhibit-P/10), had found the following injuries on her person:-

"(i) Swelling with bruise, diffuse with bony crepitus, left hand dorsal surface whole.

(ii) Bruise, bluish-red, 15.0cm x 2.0cm, oblique middle part of back right side.

(iii) Bruise, bluish red, 6.3cm x 2.0cm, oblique left side on back middle part.

(iv) Abrasion, 2.0cm x 1.0cm, on face, left side of maxillary area.

Injury No. 1 being fracture of second metacarpal was declared as grievous. Remaining injuries were found simple in nature.

Dr. Jitendra Bundel (P.W.7) on 18.1.2003 had also examined Mahesh (P.W.6) and as per Injury Report (Exhibit-P/6) had found the following injuries on his person"-

"(i) Incised wound with clotted blood and sharp margin - 4.5cm x 1.0cm, bone deep oblique, on the right occipital region.

(ii) Lacerated wound with clotted blood and stained hair - 2.0cm x 0.5, muscle deep, on the left parieto-occipital region, oblique.

(iii) Bruise with swelling, bluish colour - 11.0cm x 3.0cm, longitudinal left forearm upper 2/3 part.

(iv) Abrasion with scab black - 2.2cm x 1.8cm, left hand dorsal surface.

(v) Bruise bluish with tenderness - 8.2cm x 2.6cm, longitudinal lower part of back left side."

Dr. Rajesh Kumar Verma (P.W.21) on 17.1.2003 being posted as Medical Jurist at SMS, Hospital, Japur, had examined Laxmi (P.W.12) and as per injury report (Exhibit-P/26) had found the following injuries on her person:

"(i) Bruise - 3cm x 1cm, left temporal region, reddish-blue.

(ii) Bruise - 3cm x 1cm, right buttock, reddish-blue."

Both the injuries were found simple in nature.

Dr. N.L. Disaniya (P.W.27) on 18.1.2003, being posted as Medical Jurist in Neuro Surgery Ward, had examined Kishore (P.W.18) and as per injury report (Exhibit-P/45) had found the following injuries on his person:

"(i) Lacerated wound - 3.5cm x 1cm placed at fronto-temporal region of skull with diffuse swelling.

(ii) Abrasion - 3cm x 1cm, with diffuse swelling, above left eye-brow, with black eye.

(iii) Abrasion - 2cm x 1cm, left shoulder tip, soft scab.

(iv) Abrasion - 1cm x 1cm and 2cm x 1cm, on left knee."

Injury No. 1 was declared grievous in nature and remaining three injuries were found simple in nature.

Dr. N.L. Disaniya (P.W.27) on the same day, had also examined Ramjati (P.W.17) and as per injury report (Exhibit-P/475) had found the following injuries on her person:

"(i) Lacerated wound of size 2.5cm x 1/2cm, skin deep, left parieto-temporal region of skull with swelling.

(ii) Abrasion - 2cm x 1cm, at back lower part with soft scab."

After X-ray was conducted, Injury No. 1 was declared grievous.

Dr. P.C. Vyas (P.W.24) stated that on 16.1.2003, Moti Ram was admitted in Neuro-Surgery Ward, Unit No. 3 of SMS Hospital, Jaipur. As per hospital record, Moti Ram died on 16.1.2003 at 11:30 PM. He conducted the autopsy on the dead body of Moti Ram on 17.1.2003 at 3:05 PM and as per Post Mortem Report (Exhibit-P/28), had found the following injuries on his person:

"Scalp, Skull, Membranes, and Brain:

Scalp: As mentioned, with thick layer of subscalp haematoma on both sides fronto-parietal region and left temporal region.

Skull: Comminuted depressed fracture of right side frontal bone seen, near midline extending to both sides of frontal bone and both temporal bones with loosening of coronal suture on both sides. At base of skull, fracture like extends to both side anterior cranial fossa and linear fracture to right side middle cranial fossa.

Membranes: Found torn at side of depressed fracture of fontal bone. Thick layer of extra-dural haematoma present at both side fronto-parietal regions. Membranes are tense. Thick layer of subdural haematoma on both side fronto-parietal lobes.

Brain: (a) Contusion, 2x2cm at left frontal lobe. (b) Lacerated 31/2 x 21/2 x 1cm, on right fonto-parietal lobes. (c) Contusion, 3 x 1/4cm on brain stem.

Injuries present on the body at the time of Post-Mortem Examination:

Lacerated wound, 2.3 x 1.5 cm, bone deep with dried clotted blood, placed vertically at mid-frontal region with diffuse swelling.

Diffuse swelling in area of 4.2 x 3.7cm, present on left parietal-temporal region.

Bruise, 5 x 4cm, reddish-blue in colour, on right side of forehead.

Opinion: Cause of death is Coma due to ante-moretem injuries to skull and brain as mentioned in this Post-Mortem Report. These injuries are sufficient to cause death in ordinary course of nature."

In cross-examination, this witness stated to be correct that except on the head of the deceased, there was no other injury.

The defence has proved on record Exhibit-D/6, Exhibit-D/7, Exhibit-D/8 and Exhibit-D/9 of accused-appellants Ghanshyam, Jailal, Madan Lal and Prakash s/o Khayali Ram, respectively. All the four accused were examined at Community Health Center, Kherli. It will be apposite for us to reproduce the injuries suffered by all the four accused.

As per Injury Report (Exhibit-D/6), Ghanshyam was examined on 16.1.2003 at 3:00 PM and following injuries were found on his person:

"(i) Lacerated wound 5.2cm x 1.0cm, bone deep, longitudinal, left side of parietal region.

(ii) Incised wound with severe bleeding and haematoma, 4.2cm x 1.0cm, bone deep, left side of occipital region.

(iii) Haematoma Red in colour with complain of pain, 5.0cm x 5.0cm, right parietal eminence.

(iv) Lacerated wound with severe bleeding, 3.2cm x 1.0cm, bone deep, right fronto-parietal region.

(v) Bruise red in colour with swelling, 5.2cm x 3.0cm, posterior part right elbow with adjacent part.

(vi) Abrasion, 2.0cm x 1.5cm, left hand dorsal surface."

As per Injury Report (Exhibit-D/7), Jailal was examined on 16.1.2003 at 3:35 PM and following injuries were found on his person:

"(i) Lacerated wound, seven shaped-oblique, with blood and serum, (4.2cm x 1.0cm, bone deep) and (2.5cm x 1.0cm, bone deep), left parietal region extend upto occipital.

(ii) Incised wound, 3.8cm x 1.0cm, bone deep, transverse, left occipital region.

(iii) Bruise reddish, 5.0cm x 4.0cm, right arm longitudinal.

(iv) Bruise Reddish, 6.0cm x 2.0cm, right thigh lateral aspect."

As per Injury Report (Exhibit-D/8), Madan Lal was examined on 16.1.2003 at 4:35 PM and following injuries were found on his person:

"(i) Lacerated wound, 2.0cm x 0.5cm, muscle deep, left parietal posterior part.

(ii) Abrasion, 3.0cm x 2.0cm, left occipital region.

(iii) Abrasion, 3.5cm x 2.0cm, upper part right leg laterally near knee.

(iv) Bruise reddish colour, 5.0cm x 4.0cm, left fore-arm upper half."

As per Injury Report (Exhibit-D/9), Prakash s/o Khayali Ram was examined on 16.1.2003 at 3:55 PM and following injuries were found on his person:

"(i) Bruise red in colour, 6.0cm x 2.0cm, upper border left scapula on back.

(ii) Bruise with swelling, red in colour, 15.0cm x 6.0cm, right ankle with foot dorsal surface.

(iii) Lacerated wound, 2.0cm x 1.0cm, muscle deep, left foot-big toe.

(iv) Haematoma red in colour, 5.0cm x 3.0cm, between both parietal on sagital surface."

Ghanshyam had suffered injury on fronto-parietal region left occipital region. Jailal had also suffered injuries on head. Madan Lal had also suffered injuries on parietal-occipital region. Prakash s/o Khayali Ram had also suffered injuries on the parietal region.

The injured first informant, Mahesh appeared in the court as P.W.6 and stated that on the day of occurrence, at about 1:00 or 1:30 PM, he was present at his house. His bhabhi, Guddi had gone to fetch water at Jat Wala Well, where Saroj and Sunita were taking bath. His bhabhi restrained them. They gave beating to his bhabhi, Guddi. His bhabhi, Guddi returned to the house. The complainant party made her bhabhi understand that between women such things normally happen. They were having conversation, when within 15-20 minutes, Bhola Ram armed with lathi, Ghanshyam armed with sword, Jailal armed with lathi, Prakash armed with lathi, Madan Lal armed with Farsi, Santo armed with lathi, Yadram armed with lathi, Mannu armed with Tanchiya, Prakash son of Khayali armed with lathi, Saroj armed with lathi, Sunita armed with hockey entered into their house. At that time, his father was sitting in chowk and was smoking Hukka. Name of his father is Moti Ram. First of all, Bhola Ram gave a lathi blow on the head of his father. Thereafter, Ghanshyam gave an injury on the head of his father, Moti Ram. Thereafter, Madan Lal caused an injury on the head of his father from the reverse side of Farsi. Thereafter, Yadram gave a lathi blow on the right temporal region. Thereafter, Santo also caused injuries to Moti Ram with lathi. Then everybody started beating Moti Ram. His mother was in the kitchen. They also caused him injuries. Jailal had caused injury with Farsi and Mannu Ram caused injury with Tanchiya to his mother on her head. Yadram and Santo also caused injury on the head of his mother with lathi. When his brother came forward to save his father, then Ghanshyam gave a sword blow on his head. Bhola Ram caused injury on the head with lathi. Prakash also caused injury with lathi on the head of Kishore. This witness also came forward to save his father, then Ghanshyam gave him a blow with sword on his head. Then Jailal gave a Farsi blow on his head. Madan also gave a Farsi blow on his head. When his sister, Beena came forward, she was also beaten. Kishore caused injury with lathi on her hand. Ummedi also caused a lathi blow on the person of Beena. There was nobody to save the witnesses. His father, brother and sister were brought to the Kherli hospital. He gave information to the police and police arrived at the hospital. His father was administered glucose and was referred to Jaipur, where CT-scan examination was conducted.

Laxmi (P.W.12), the another injured witness also reiterated the version given by his brother, Mahesh (P.W.6).

Smt. Guddi (P.W.13) also corroborated the testimony of other injured witnesses. However, in cross-examination she stated that she had not seen any injury on the person of accused.

Other witnesses, namely Beena (P.W.14), Ramjati (P.W.17) and Kishore (P.W.18), as injured eyewitnesses supported the prosecution case.

We need not notice the statement of other witnesses, as other injured have divulged the version regarding injury caused to Moti Ram, the deceased and injuries received by them.

Suffice it to say that Ishaq Mohammad (P.W.20), the Investigating Officer, in the court had stated that he got accused, Jailal, Prakash, Madan Lal and Ghanshyam medico-legally examined and during his investigation it has surfaced that the complainant party had caused injuries to the accused in their defence. It will be apposite her to reproduce following portion of cross-examination of Investigation Officer, Ishaq Mohammad as under:-

The Investigating Officer further submitted that in the version given by the accused, he had submitted final report in negative form.

After the prosecution had closed its evidence, the statement of the accused were recorded under Section 313 Cr.P.C.

The accused-appellant, Bhola Ram stated that he was not present in the village Bhanokhar. He was at his house at village Kherli. Therefore, he denied all the incriminating evidence put to him and pleaded false implication. The accused-appellant, Ghanshyam also stated that he had been falsely implicated. Prakash, another injured accused also stated that he was not present in the village. Almost all the accused have denied their involvement.

In defence, seven witnesses were examined. The accused, Bhola Ram appeared as D.W.1 and stated that he was not in the village. Gopal (D.W.2), Sher Singh (D.W.3), Murari (D.W.4) and Badri (D.W.5) appearing in the court had supported the plea of alibi raised by the accused Bhola Ram (D.W.1).

Bharat Lal (D.W.6) and Ram Singh (D.W.7) while appearing as defence witnesses stated that Prakash was not present in the village, where the occurrence had taken place, as he was with them at Ramgarh.

Mr. A.K. Gupta, the learned counsel appearing on behalf of the appellants, has submitted that Ishaq Mohammad (P.W.20), the Investigating Officer, admitted that four accused were examined at his behest at Community Health Center, Kherli by Medical Officer. It is contended that as per injury reports, Exhibit-D/6, Exhibit-D/7, Exhibit-D/8 and Exhibit-D/9, Ghanshyam, Jailal, Madan Lal and Prakash son of Khayali Ram, respectively, had suffered injuries in the occurrence. These injured were also examined at the same time after the occurrence. The duration of the injuries suffered by the accused coincide with the injuries suffered by the complainant party. It is stated that all the four accused have suffered injuries on head and same cannot be self-suffered. Therefore, it is contended before us that the prosecution has suppressed the origin and genesis of the occurrence.

Mr. A.K. Gupta, the learned counsel has also contended that as per the prosecution, there is no previous enmity between the parties and on the trivial issue regarding fetching of the water at the well, two ladies from the side of the accused had given injuries to Smt. Guddi (P.W.13), bhabhi of the complainant. It is contended that thus as per Mohan (PW-6) and other injured witnesses the complainant party was aggrieved and to avenge injury caused to Smt. Guddi (PW-13) they acted as aggressor.

Mr. N.S. Dhakad, the learned Public Prosecutor, has submitted that the complainant party has caused injuries in self defence.

We have examined the statements of the prosecution witnesses, recorded in the Court, it is nowhere stated by them that they have caused injuries to the accused party. The complainant party is totally silent qua the injuries suffered by the four accused persons, namely Ghanshyam, Jailal, Madan Lal and Prakash son of Khayali Ram. A perusal of the injury reports, Exhibit-D/6 to Exhibit-D/9, reveals that all the four accused have suffered injuries on the head, which is a vital part of the body. Hence, injuries on the head cannot be self-suffered. All the four injured accused were also examined on 16.1.2003 between 3:00 PM to 4:35 PM. Therefore, they have suffered the injuries in the occurrence. No explanation is forthcoming regarding the injuries on the person of these four accused.

In Bijoy Singh and Another Vs. State of Bihar, AIR 2002 SC 1949 : (2002) CriLJ 2623 : (2002) 2 Crimes 437 : (2002) 1 JT 372 Supp : (2002) 3 SCALE 592 : (2002) 9 SCC 147 : (2002) 3 SCR 179 : (2002) 1 UJ 749 : (2002) AIRSCW 1873 : (2002) 4 Supreme 362 , the Hon''ble Supreme Court has held as under:

"6. This Court in Meharaj Singh (L/Nk.) vs. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought.

Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. (Emphasis supplied). It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it.

In the instant case, the copy of the report referred to in Section 157 CrPC is shown to have been received by the Magistrate on 27-8-1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time of sending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27-8-1991. We are of the opinion that the Magistrate receiving reports under Section 157 CrPC, particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B.B. Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy of the report and its receipt by the Magistrate but surely there is a difference between the "may be" and "must be". The prosecution has apparently failed to explain the delay in sending the copy of the said report in terms of Section 157 CrPC to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission.

From a perusal of the written report (Exhibit-P/4), on the basis of which formal FIR (Exhibit-P/5) was registered, it is apparent that the complainant had stated that injuries were caused to Smt. Guddi at well. Guddi had returned to the house and thereafter, a verbal duel had ensued between the ladies. - . The accused came to the complainant''s house. To us, there is a blemish in the prosecution case. There is a twist given by the complainant party. After Smt. Guddi was beaten at the well, it was followed by verbal duel between the ladies of both the families and due to exchange of hot words, temper ran high and the situation went out of control and both the parties came to blows. The above inference is drawn by us not only on the basis that the written report was submitted after delay of one day, but the special report also reached Illaqa Magistrate by delay of another day. Thus, there was a delay of two days in reaching of the special report. Suppression of the injuries on the person of accused and the different statements made by the witnesses regarding origin of the occurrence, cast duty upon us to sift grain from the chaff as the story accused came to the house of complainant is not only improbable, in the circumstances, in which occurrence had originated, but is an after thought as result of consultations and deliberations, by taking benefit of delay.

In the present case, that the occurrence was sudden affair, without any pre-meditation due to the incident at the well, where Smt. Guddi was given beating by Sunita and Saroj. It is the family members of Guddi, who felt hurt and it has rightly been stated in the written report that immediately thereafter, ladies of both the houses had an altercation. To us, sudden occurrence had erupted in the street and both sides came to blows. It is a case of sudden fight.

It was held by the Hon''ble Supreme Court in the case of Jumman and Others Vs. The State of Punjab, AIR 1957 SC 469 : (1957) CriLJ 586 as under:-

"(24). In such a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under S.300, I.P.C., Exception 4.

(25). The matter has to be viewed in this way. It is clear that there was no pre-meditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passions, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence Exception 4 to S.300, I.P.C., applies with the result that the offence is under S.304 (Part I), I.P.C."

A Division Bench of this Court in Buddhi Lal and Others Vs. State of Rajasthan, (2004) CriLJ 4420 : (2004) 2 RLW 1338 : (2004) 2 WLC 405 , relying upon Dharman Vs. State of Punjab, AIR 1957 SC 324 : (1957) CriLJ 420 held as under:-

"13. Coming to the incident that occurred with deceased Saltu we find that he sustained injuries in the course of sudden fight ensued in the field of accused party. The complainant party was also armed with deadly weapons and as many as eight accused persons received lacerated and incised wounds on the vital parts. In Dharman Vs. State of Punjab, AIR 1957 SC 324 : (1957) CriLJ 420 the Supreme Court held that when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner and that the case against the accused falls within Exception 4 of Section 300 of the Indian Penal Code and the accused who caused the injury was guilty under Part I of Section 304 and not under Section 302 of the Indian Penal Code."

Taking totality of the circumstances, we are of the view that the accused Bhola Ram and Yadram have been substantively convicted for the offence under Section 302 for having given fatal blows to Moti Ram, the deceased. Thus, Bhola Ram and Yadram are held responsible for causing death of Moti Ram. Considering that the occurrence was sudden affair, without any pre-meditation, we are of the view that the offence qua them will not fall under Section 302 IPC, but under Section 304-I IPC.

Consequently, we convert the offence and set aside the sentence of life imprisonment awarded under Section 302 IPC upon Bhola Ram. He is held guilty of offence under Section 304-I IPC and sentenced to undergo ten years R.I. and to pay a fine of Rs. 10,000/-, in default of payment of fine, to further undergo one year R.I.

Substantive conviction of Bhola Ram for the offence under Section 307 and 325 is upheld. The sentence awarded to him on all the counts by the trial court shall run concurrently.

We acquit the accused, Ghanshyam of offence under Section 302/149, 307/149 and 325/149 and maintain his substantive conviction for the offence under Section 324, as he is also individually liable for the role played by him. Consequently, we also upheld the sentence of one year awarded upon Ghanshyam under Section 324 IPC.

Since, we have held that the occurrence had taken place in the street, all appellants are acquitted for the offence under Section 452 IPC. Due to our finding that occurrence was a sudden fight, all appellants are also acquitted of offence under Section 148 IPC.

Since we have held that Section 149 is not attracted, Prakash s/o Khayali Ram, Prakash s/o Mohan Lal, Ummedi Lal and Mannu Ram are acquitted of offence under Section 302/149, 307/149, 325/149 and 324/149 IPC and their substantive conviction for offence under Section 323 IPC is upheld. We also uphold the sentence awarded to them under Section 323 IPC.

With the above modification, qua offence and sentence noted, qua each appellant, the present appeal stands disposed of.