Saidu Muhammed vs State Of Kerala

G.Girish, J

The judgment dated 30.11.2017 of the Additional Sessions Judge-III, Manjeri convicting and sentencing the appellants under Sections 448, 323 and 302 I.P.C, is under challenge in this appeal. As per the above judgment, the appellants, who were accused Nos.1 and 2 were sentenced to life imprisonment and fine of Rs.50,000/- under Section 302 of the IPC, simple imprisonment for one month and fine of Rs.1,000/- each under Section 323 of the IPC and simple imprisonment for one month and fine of Rs.1,000/- each under Section 448 of the IPC.

The prosecution case is summarized as follows:

The deceased Dakshinamoorthy @ Chinnayya and PW1, PW2, PW3 and CW4 were migrant workers from the State of Tamilnadu who came to the place called Moochikkal in Malappuram District for the purpose of employment. They were residing on the 3rd floor of a building called Ayyappalli Towers in connection with their employment. The appellants and the 3rd accused, who were tippling in a vacant land along with PW12, at about 10.20 pm, on 15.04.2014, did not relish the deceased and other migrant laborers from Tamilnadu talking aloud from the open terrace of the above said building. Thereupon appellants 1 and 2, followed by the 3rd accused, criminally trespassed into the open terrace of the building by name Ayyappally Towers and slapped the deceased and his friends. When the deceased questioned the above act of the appellants, they, with the intention of causing the death of the above person by name Dakshinamoorthy @ Chinnayya, lifted him by holding his hands and legs, and flung him down to the ground floor of the building leading to fatal head injuries. Though the victim was taken to hospital and rendered medical aid, he succumbed to the injuries on 21.04.2014. Thus, the appellants along with the 3rd accused committed the offence punishable under Sections 449 , 323 and 302 read with Section 34 of the IPC.

PW1, an eye witness to the incident, tendered Ext.P1 First Information Statement to the Station House Officer of Tanur Police Station at 3.10 pm on 16.04.2014. The above statement was recorded with the help of an interpreter and Ext.P8 FIR was registered by PW15, the Station House Officer in charge of that Police Station, under Sections 307, and 323 IPC read with section 34 IPC. Thereafter, PW16, the Inspector of Police, Tanur took over the investigation on 17.04.2014 and initiated the usual procedures, as required by law. PW16 visited the scene of crime and prepared Exts.P3 and P9 scene mahazars and took MO1 to MO7 material objects into custody. The Investigating Officer also availed the assistance of the Scientific Assistant attached to the Regional Forensic Science Laboratory for taking the samples of material objects from the scene of crime. He moved the necessary applications before the Jurisdictional Magistrate for forwarding the samples collected for scientific analysis. In the meanwhile, the victim succumbed to the injuries on 21.04.2024. The inquest and autopsy of the body of the deceased were promptly done. Accused Nos.1 to 3 were arrested on 24.04.2014 and remanded to judicial custody. At the request of the Investigating Officer a test identification parade of the accused was conducted on 07.05.2014 by the Judicial Magistrate of the First Class, Ponnanni. In the above test identification parade, PW2 identified accused Nos.1 to 3. After the completion of the investigation, PW20, the Inspector of Police, Tanur laid the Final Report before the learned Magistrate.

Upon commitment of the case, the Court of Sessions, Manjeri, after securing the presence of the accused, proceeded with the preliminary hearing and framed charges against the accused under Sections 449, 323 and 302 of the IPC r/w Section 34 of the IPC. Thereafter the case was made over to Additional Sessions Judge - III, Manjeri for trial. The prosecution examined 20 witnesses as PW1 to PW20 and marked 26 documents as Exts.P1 to P26. Seven material objects were identified as MO1 to MO7. After the close of the prosecution evidence, the statements of the accused were recorded under Section 313(1)(b) of the Code of Criminal Procedure. They denied the accusations and contended that they were totally innocent. Finding that there is no scope for an acquittal under Section 232 of Cr.P.C., the learned Additional Sessions Judge afforded opportunity to the accused to adduce defense evidence. But the accused did not adduce any evidence.

As already stated above, PW1 is the first informant who gave Ext.P1 statement to the SHO of Police, Tanur. The above statement given by the said eye witness in Tamil was translated and recorded in Malayalam language with the help of an interpreter. PW1 identified the accused and swore before the Trial Court about the whole incident which resulted in the death of his colleague Dakshinamoorthy @ Chinnayya at the hands of accused Nos.1 to 3.

PW2 and PW3, the other eyewitnesses to the crime also testified before the Trial Court in tune with the prosecution case. Both the above witnesses identified the accused standing in the dock.

PW4 is the person who identified the dead body of the victim at the time of inquest proceedings. The inquest report was marked as Ext.P2 through the above witness.

PW5, a person who has been carrying on business in the ground floor of the building, testified before the Trial Court about the transportation of the victim in an autorickshaw. He stated before the Trial Court that the victim was taken to the Medical College Hospital, Kozhikode as referred from Taluk Hospital, Tirur. PW5 is a witness to Ext.P3 scene mahazar and the collection of MO1 and MO2 from the scene of crime.

PW6 was the employer of the deceased and the other migrant laborers who were residing at Ayyappally Towers, Moochikkall. He has no direct knowledge regarding the incident involved in this case.

PW7 is the Police personnel who guarded the dead body of the deceased at the Mortuary of Medical College Hospital, Kozhikode and handed over the body to the relatives of the deceased after the completion of autopsy.

PW8 is an attestor to Ext.P4 seizure mahazar on the basis of which the samples collected by the Forensic Surgeon were handed over by PW7 to PW16, the Investigating Officer. PW9 is the photographer who took the photographs of the deceased.

PW10 is the Forensic Surgeon who conducted the autopsy of the dead body of the deceased and issued Ext.P5 Postmortem Certificate. In the above postmortem Certificate, PW10 noted 17 external injuries on the body of the deceased.

PW11 is the scientific assistant attached to the Regional Forensic Science Laboratory who had visited the scene of crime along with the Investigating Officer on 17.05.2014 and collected blood samples. He is the very same witness who analysed the said samples along with other samples, and prepared the Ext.P6 FSL report.

PW12 is the friend of the accused who had the occasion to join them on 15.04.2014 in an open place near to the building where the deceased and his colleagues were residing. He stated before the Trial Court about the act of the accused tippling by about 9.00 pm, and accused Nos.1 and 2 going to the building where the deceased and others were residing, upon hearing noise from there.

PW13 is the Special Village Officer, who had prepared the Ext.P7 site plan and handed over the same to the Investigation Officer. PW14 is a Home Guard attached to Tanur Police Station, who translated the First Information Statement given by the PW1 from Tamil to Malayalam.

PW15 was the SHO of Police, Tanur who recorded Ext.P1 First Information Statement given by PW1 and registered Ext.P8 FIR on the basis of it.

PW16 is the Inspector of Police, Tanur, who conducted the investigation in this case and laid the final report before the Jurisdictional Magistrate.

PW17 is an attestor to Ext.P9 scene mahazar, on the basis of which MO4 to MO7 were taken into custody by the Investigating Officer. PW18 is the photographer who had taken the photographs of the crime scene.

PW19 is the Doctor who had issued Ext.P24 Treatment Certificate while working as Assistant Professor in the Department of Surgery at the Medical College Hospital, Kozhikode.

PW20 was the Secretary of Tanur Gramapanchayat who issued Ext.P25 OwnerShip Certificate about the building where the deceased and his co-workers resided.

After analysing the aforesaid evidence and hearing both sides, the learned Additional Sessions Judge arrived at a finding that accused Nos.1 and 2, who are the appellants herein, committed the offence punishable under section 302, 448 and 323 of the IPC, and awarded the sentence as stated above.

In the present appeal, the appellants would contend that the Trial Court went wrong in appreciating the evidence adduced by the prosecution and arrived at a wrong finding against the appellants. According to the learned counsel for the appellants, the evidence tendered by PW1 to PW3 about the commission of the crime, was totally unbelievable, and hence the Trial Court ought to have discarded the same. It is also stated that the version of PW12 is not in consonance with the evidence of PW1 to 3. Accordingly it is argued that the appellants are to be acquitted of the charges.

Heard Adv.Mr.K.M.Sathyanatha Menon, the learned counsel for the appellants and Adv.Smt.Neema.T.V., the learned Senior Government Pleader representing the respondents.

This is a case where the prosecution would rely on the formidable and indefeasible evidence of the occurrence witnesses examined as PW1 to PW3 to establish the charge levelled against the accused. Among the above three witnesses, PW1 is the person who lodged Ext.P1 first information statement, on the basis of which, Ext.P8 First Information Report has been registered. PW2 and PW3, the other witnesses who had the occasion to see the incident, tendered evidence before the Trial Court in substantial conformity with the first information statement and the evidence tendered by PW1.

It is true that the date of the incident has been mistakenly stated as 14.04.2014 by PW1, instead of 15.04.2014. However, the above discrepancy is of no consequence since nobody has got a dispute about the date when the crime involved in this case took place. Being an error which happened due to slip of tongue, the mistake committed by PW1 in mentioning the date of incident would no way affect the credibility of the prosecution case.

PW1 to PW3 stated before the Trial Court in unequivocal terms that the incident took place at the terrace of the 3rd floor of the building at the place called Moochikkal where they have been residing in connection with their employment. All the above witnesses deposed that, accused Nos.1 and 2 came to the terrace of the building by about 10:00 p.m on 15.04.2014 and questioned their act of talking aloud. It is further stated by the said witnesses that the accused No.3 followed accused Nos.1 and 2 to that place, and that the deceased Dakshinamoorthy @ Chinnayya was then physically assaulted by the accused by slapping him and engaging in a scuffle. The act of accused Nos.1 to 3 slapping and physically assaulting PW1 to PW3, is stated by the said witnesses in clear and categorical terms. Furthermore, PW1 to PW3 have stated the fact that accused Nos.1 to 3 were in a drunken condition. The act of accused Nos.1 and 2 getting hold of the deceased by his legs and hands, lifting him up and throwing him to the ground from the terrace of that three storied building, has been spoken by PW1 to PW3. The said witnesses also stated about the accused leaving the place after the commission of the crime, and the effort made by them to save the life of the deceased by taking him to the hospital at Tirur, and from there, to the Government Medical College Hospital, Kozhikode. Apart from some minor discrepancies, nothing could be brought out, in defence, to discredit their evidence.

The conduct of accused Nos.1 to 3, who assembled in an open ground near to the building where the incident happened, having drink; and the act of accused Nos.1 and 2, followed by accused No.3, proceeding to the aforesaid building upon hearing noise from that building at about 10:00 p.m on 15.04.2014, has been stated by PW12, one of the friends of accused Nos.1 to 3 who joined them in that assembly at the open ground. PW12 also stated about the strange and suspicious responses of accused No.3 when he called him later on through phone, and the enquiry made by the mother of accused No.2 on the next day since the said accused did not return to his house. Thus, the evidence of PW12, a friend of the accused Nos.1 to 3 who had the occasion to join them in the consumption of liquor at a ground near to the building where the victim had been residing, shortly before the commission of the crime in the night of 15.04.2014, would clearly establish the events till the accused Nos.1 to 3 entered the said building by about 10:00 p.m on 15.04.2014. The events that happened thereafter have been narrated in clear and consistent terms by PW1 to PW3. The hospitalisation of the victim who was found lying in the ground with serious injuries suffered as a result of being thrown down from the terrace of that building, has been spoken by PW5 also, who was having a shop near to that building. PW5 stated before the Trial Court that he had made the arrangements to shift the victim to the Taluk Hospital, Tirur, in an autorickshaw when he found that the said person lying on the ground seriously injured as a result of the fall, showed signs of life, when his pulse was checked. Thereafter, PW5 also ensured that the victim was taken in an ambulance to the Medical College Hospital, Kozhikode for expert medical management. Thus, the evidence tendered by PW5 would establish the subsequent events after the victim was pulled down from the terrace of that three storied building.

The acceptability of the evidence of PW1 to PW3 has been challenged by the learned counsel for the appellants on two grounds. Firstly, it is stated that all those witnesses are close relatives and friends of the deceased and hence interested in seeing that the accused are put behind the bars. Secondly, it is pointed out that there are discrepancies in the evidence of the above witnesses which would render it unbelievable.

The first contention of the learned defence lawyer about the interestedness of the witnesses as a ground to discard their evidence, is prima facie untenable in view of the settled position of law that the evidence tendered by a natural and probable witness to an incident cannot be brushed aside for the sole reason that he is a close friend or relative of the victim of the crime. There may be some witnesses who are inimically disposed towards the accused, and some others who are having close bondage with the victim due to friendship or relationship. But for canvassing an argument for the rejection of the evidence of those witnesses, the accused must lay a foundation for such argument that their false implication springs from such enmity of the witnesses towards him, or the affection of the witnesses towards the victim. The mere fact that the witnesses were related to the victim, or that they were not on good terms with the accused, is not enough to establish the above foundation. On the contrary, the version of such a witness could be treated as truthful on the simple logic that he would not screen the real culprit to falsely implicate an innocent. Suffice it to say that, the process of evaluation of evidence of witnesses, whether they are partisan or interested, is to be undertaken in the facts and circumstances of each case having regard to ordinary human conduct, prejudices and predilections. It is true that when feelings run high, and there is personal cause for enmity, there will be a tendency to drag in an innocent person against whom a witness has a grudge. But in the absence of reliable materials brought out to show that the witnesses are falsely implicating the accused due to their grudge with him, and sentiments towards the victim, the challenge made on the basis of mere interestedness can only fail. In Pulicherla Nagaraju v. State of A.P., [(2006) 11 SCC 444 ], the Hon’ble Supreme Court has held as follows:

“In this case, we find that the trial court had rejected the evidence of PW 1 and PW 2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted. (Vide Hari Obula Reddy v. State of A.P. [(1981) 3 SCC 675 : 1981 SCC (Cri) 795] , Ashok Kumar Pandey v. State of Delhi [(2002) 4 SCC 76 : 2002 SCC (Cri) 728] and Bijoy Singh v. State of Bihar [(2002) 9 SCC 147 : 2003 SCC (Cri) 1093] .) Nothing had been elicited in the cross-examination of PW 1 and PW 2 to discredit their evidence. Their evidence finds corroboration in Ext. P-1 and the evidence of the doctors (PW 11 and PW 12) and the MOs seized on the disclosures made by A-1 and A-3. Therefore, the High Court rightly held that the evidence of PWs 1 and 2 could not be rejected, even though they were closely related to the deceased and inimically disposed towards the accused. There is no infirmity in the decision of the High Court by reappreciating the evidence and reaching independent conclusions.”

As regards the evidence of witnesses in inimical terms with the accused, the Apex Court in Juman v. State of Bihar [(2017) 11 SCC 85] observed as follows:

“We have seen in the instant case that the witnesses have vividly deposed about the genesis of the occurrence, the participation and involvement of the accused persons in the crime. The non-examination of the witnesses, who might have been there on the way to hospital or the hospital itself when deceased narrated the incident, would not make the prosecution case unacceptable. Similarly, evidence of any witness cannot be rejected merely on the ground that interested witnesses admittedly had enmity with the persons implicated in the case. The purpose of recording of the evidence, in any case, shall always be to unearth the truth of the case. Conviction can even be based on the testimony of a sole eyewitness, if the same inspires confidence. Moreover, prosecution case has been proved by the testimony of the eyewitness, since corroborated by the other witnesses of the occurrence. We are constrained to reject the submissions made on behalf of the appellants.”

(Emphasis supplied)

The judicial precedents on this point are aplenty. For the sake of brevity, we confine ourselves by quoting the citations, Shanmugham and Another v. State represented by Inspector of Police, Tamil Nadu [(2013) 12 SCC 765], Ganga Bhavani v. Rayapati Venkat Reddy and Others [AIR 2013 SC 3681] and Namdeo v. State of Maharashtra [(2007) 14 SCC 150] on this aspect. As far as the present case is concerned, we find absolutely no reason to reject the evidence of PW1 to PW3 for the reason that they are the close friends and relatives of the victim.

As regards the second ground pointed out by the learned counsel for the appellants about the discrepancies in the evidence of PW1 to PW3, we are of the view that those discrepancies are so trivial that it could no way affect the core of the evidence let in by the prosecution. It is well settled that while appreciating the evidence of witnesses, the court has to keep in mind the deficiencies, drawbacks and infirmities and arrive at a finding as to whether such discrepancies would shake the truthfulness of those witnesses. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible to affect the credibility of the version of a witness, the court may reject such evidence. Having regard to the fact that it would be nearly impossible to come across the testimony of a witness which does not have a fringe or embroidery of untruth despite the core of the evidence let in by him being true, it is the function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. On this score, it is apposite to extract the following observation of the Apex Court in paragraph 24 of the judgment rendered in Vinod Kumar v. State of Haryana, [(2015) 3 SCC 138 ]

“The next facet relates to the discrepancies in the evidence of the witnesses. The learned trial Judge has found discrepancies with regard to the handing of letter by Santosh to Manphul; the discrepancies relating to the place and time pertaining to various aspects stated by witnesses and the identity of the accused at the time of arrest. The discrepancies which have been noted are absolutely minor. The High Court has correctly observed that the minor discrepancies like who met whom, at what time and who was dropped and at whose place and at what time, etc. have been given unnecessary emphasis. It is well settled in law that minor discrepancies on trivial matters not touching the core of the case or not going to the root of the matter could not result in rejection of the evidence as a whole. It is also well-accepted principle that no true witness can possibly escape from making some discrepant details, but the court should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that it would be justified in jettisoning his evidence. It is expected of the courts to ignore the discrepancies which do not shed the basic version of the prosecution, for the court has to call into aid its vast experience of men and matters in different cases to evaluate the entire material on record. (See State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105] , Rammi v. State of M.P. [(1999) 8 SCC 649 : 2000 SCC (Cri) 26] and Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559] .)”

The consistent view on the above course of appreciation of evidence has been laid down by the Apex Court in Bhagwan Jagannath Markad v. State of Maharashtra [(2016) 10 SCC 537], Subal Ghorai v. State of West Bengal [(2013) 4 SCC 607], State of Rajasthan v. Kalki [AIR 1981 SC 1390], Bhag Singh v. State of Punjab [(1997) 7 SCC 712] and State of Uttar Pradesh v. Sankar [AIR 1981 SC 897].

As far as the present case is concerned, the slight variations in the testimonies of PW1 to PW3 about the room where PW1 had gone to bed in the night of 15.04.2014, which of those witnesses were assaulted first by the accused, the vehicle in which the victim was taken to hospital, the question whether PW2 had gone to his native place immediately after the incident and returned only after ten days or not etc., are not having relevance or seriousness of such a nature as to reject the prosecution evidence in toto. Therefore, the argument advanced by the learned counsel for the appellants upon the above lines, is devoid of merit.

A total evaluation of the evidence adduced by the prosecution would convincingly establish the act of the appellants (accused Nos.1 & 2), and the 3rd accused, criminally trespassing into the building by name, Ayyappally Towers, where the deceased and PW1 to PW3 were residing, inflicting voluntary hurt upon the deceased and PW1 to PW3 by slapping them, and thereafter, the appellants (accused Nos.1 & 2) engaging in a tussle and pulling down the deceased from the terrace of the third floor of that building to the ground, resulting in the fatal injuries which eventually resulted in his death on 21.04.2014 while undergoing treatment at the Medical College Hospital. There is absolutely no reason to interfere with the findings of the Trial Court in that regard.

Now, the only question to be looked into is whether the act of the appellants (accused Nos.1 & 2) pulling down the deceased from the terrace of the third floor of the above said building to the ground, in the night of 15.04.2014 leading to the fatal head injury, which resulted in his death on 21.04.2014 at the hospital, would come under the definition of murder envisaged under Section 300 of the Indian Penal Code.

The facts and circumstances of the case as revealed from the evidence would go to show that the accused mounted the attack on the deceased and his colleagues without any premeditation. So also, the assault prima facie partakes the character of a sudden fight in the heat of passion up on a sudden quarrel, which would compel us to explore the scope of the fourth exception to section 300 IPC, in the case on hand. On the applicability of Exception 4 of Section 300 IPC, the Apex Court in Sukhbir Singh v. State of Haryana, [(2002) 3 SCC 327] held as follows:

“To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by the courts that a fight is not per se palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception.”

In Iqbal Singh v. State of Punjab, [(2008) 11 SCC 698] the Apex Court has held as follows:

“The help of Exception 4 can be invoked if death is caused : (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage.

Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan [(1993) 4 SCC 238 : 1993 SCC (Cri) 1156 : AIR 1993 SC 2426] it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage.”

It is true that the evidence tendered by PW1 to PW3, would give the impression that the deceased Dakshinamoorthy @ Chinnayya was caught by his arms and legs by the appellants, lifted up and thrown downstairs as if it was done in a lucid manner by swinging and throwing a mere object. However, it is pertinent to note that the above act of the deceased being pulled down from the terrace of that building happened at the fag end of a scuffle of the appellants three in number with the deceased and his colleagues five in number. It is not possible to think that the appellants might have committed the above act of throwing down the deceased with the same ease as that of lifting up an unconscious person by his legs and arms and flinging him down without any resistance. On the other hand, going by the evidence on record, the act of pulling down the deceased from the terrace of that building could only be expected to have happened after tussling for at least a few minutes, and finally the appellants succeeding in dropping the deceased down to the ground from the terrace of that building. In other words, the decision of the appellants to pull down the deceased from the terrace of that building could have been taken only at the spur of the moment during the course of the brawl. It is not possible to think that the appellants trespassed into that building and engaged in fisticuffs with the deceased and PW1 to PW3 with the predetermination to throw the deceased down floor from the terrace of that building and thus, to cause the death of that person. On the other hand, the act done by the appellants in the above regard can only be the consequence of an instantaneous development of the scuffle with the deceased. Needless to say that the appellants committed the aforesaid act without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel which arose when they questioned the deceased and others shouting during night in that building.

Now, the next aspect to be looked into is whether the appellants took undue advantage or acted in a cruel or unusual manner. As already stated above, the incident involved in this case took place consequent to an encounter and scuffle between the appellants three in number, and the deceased and his colleagues, five in number. There is no case for the prosecution that the accused were armed with any weapons, while they unleashed the assault upon the deceased and PW1 to PW3. Thus, it cannot be said that the appellants took advantage of any excess manpower wielded by them, or the use of any lethal weapons with which they were armed, during the commission of the crime. Therefore, it has to be concluded that the appellants cannot be said to have taken undue advantage, while engaged in the assault upon the deceased and others. As regards the question whether the act of the appellants was cruel or unusual, it has to be stated at the outset that, in general perception, all criminal acts of causing the death of a person could be termed as cruel and unusual. Yet, for classifying any such act as cruel and unusual, it has to be looked into whether the assailants committed the same in a dastardly manner, which could never be expected as a normal consequence, having regard to the nature of the act. As far as the present case is concerned, the fall of a person to the downstairs, cannot be said to be an unexpected event when he is engaged in a fight and scuffle at the terrace of a building. There is no case for the prosecution that the accused persisted with their violence even after the fall of the victim. When viewed in the above perspective, it is not possible to say that the incident involved in this case was the consequence of an unusual act, though it could be said to be cruel to a certain extent. In view of the above peculiar nature of the commission of the crime by the appellants in the manner which we have narrated above, it would clearly come under Exception 4 of Section 300 of the Indian Penal Code. However, having regard to the nature and manner of commission of crime, it has to be stated that the act by which the appellants caused the death of the deceased has to be termed as one done with the intention of causing such bodily injury as is likely to cause death. Therefore, the offence committed by the appellants in the above regard would come within the purview of the first part of Section 304 I.P.C. In that view of the matter, it is highly necessary to alter the sentence imposed upon the appellants for the commission of the aforesaid crime. Having regard to the facts and circumstances of the case and the gravity of the offence, we are of the view that the appellants are liable to be sentenced to rigorous imprisonment for 10 years and a fine of Rs.50,000/- (Rupees Fifty Thousand only) each for the offence under Section 304 Part 1 I.P.C found to have been committed by them. The other findings of the Trial Court in respect of the commission of offence under Section 448 I.P.C and Section 323 I.P.C, and the sentence imposed thereunder, are retained as such.

In the result, the appeal stands allowed in part as follows:

(i) The conviction of the appellants (accused Nos.1 & 2) for the offence under Section 302 I.P.C and the sentence imposed thereunder by the Trial Court are set aside.

(ii) The appellants (accused Nos.1 & 2) are found guilty of commission of offence under Section 304 Part 1, I.P.C and they are convicted thereunder.

(iii) The appellants (accused Nos.1 & 2) are sentenced to rigorous imprisonment for 10 years and fine of Rs.50,000/- (Rupees Fifty Thousand only) each under Section 304 Part 1, I.P.C. In default of payment of fine, the appellants will undergo rigorous imprisonment for a further term of five months.

(iv) The conviction of the appellants, and the sentence awarded by the Trial Court under Sections 448 and 323 I.P.C, are retained as such.

(v) The other directions in the judgment of the Trial Court in respect of set off, as well as payment of compensation, out of the fine amount, to the wife and children of the deceased, are also upheld.