Gopal Singh, J.
1. This is appeal by Nafe Singh. He has been convicted under Section 302. Indian Penal Code for the murder of Sain Dutta and sentenced to imprisonment for life and to pay a fine of Rs. 500/- or in default of payment .of fine, to suffer further rigorous imprisonment for six months.
2. The occurrence took place at about 2 p.m. on December 27. 1968. At that time, the deceased and the appellant were having their respective mule carts with them. The deceased demanded certain amount from the appellant due to him on account of cart charges. The appellant told him in reply that he did not owe anything to him. Hot words and abusive laneuaae were exchanged by them. Lai Singh. Des Rai and Kalu Ram were present closeby. Lai Singh and Des Rai separated the two. The appellant drew a Khunta out of his cart and struck a blow on the head of the deceased. On receipt of the blow the deceased fell down and became unconscious. Lai Singh and Des Rai placed the deceased in his cart. Lai Singh took the deceased to the Medical College. Rohtak. Mast Ram, brother of the deceased met him on the wav. Mast Ram accompanied Lai Singh.
3. Leaving the deceased in the hospital of the college. Lai Singh reached the City Police Station, Rohtak and lodged the first information report at 3.30 p. m. It is Exhibit P. E. The deceased expired in the hospital at 4.15 p. m. on December 27. 1968. The inauest report was drawn up. Dr. A. S. Chowdhary Deputv Chief Medical Officer Rohtak conducted the post-mortem examination of the deceased. He found the following iniuries on his person:
1. Lacerated wound irregular in shape in the middle of scalp 5' above the eve brow, size 1/2' x1/4'.
2. Right upper eve brow swollen, dark blue in colour, size 2 1/2 x l'
3. Swelling on right side of skull, size 8x6 cm., above the right ear, bluish discolouration present.
4. Swollen left side of skull on the frontal and parietal bone size 8x6 cm. above the left ear.
4. He noticed that both the sides of the skull along with the frontal bone were fractured and dark coloured blood was present between the durameter and brain. He gave the opinion that the death of the deceased was due to fractures of skull, haemorrhage on surface of brain, compression of brain and its laceration, as a result of the iniuries suffered by the deceased. He also opined that the iniuries were sufficient in the ordinary course of nature to cause death. The doctor stated that iniuries Nos. 1, 2 and 4 could be caused bv a single blow on the head.
5. The appellant was taken in custody on December 28. 1968. On interrogation he made disclosure statement saying that he had kept concealed Khunta in bushes at a particular place between the Medical College, Rohtak and the railway line and could get the same recovered. In pursuance of that statement Khunta P. 1 was recovered.
6. At the trial, the case of the prosecution was supported bv the testimony of Lai Singh P. W. 3, Des Rai P. W. 4 and Kalu Ram P. W. 5, as eve witnesses, the medical evidence and the recovery of Khunta P. 1'. The appellant stated that he was present at the time of occurrence in the Old Grain Market where the occurrence took place that the deceased asked the appellant to pay his dues, that the appellant expressed his inability to do so. that thereupon the deceased stood up in front of his cart with a lathi in his hand and would not allow the appellant to proceed further with his cart, that the appellant was requested to refrain from so doing, that the appellant wanted to Proceed further with his cart, the deceased aimed a blow at the appellant which the latter avoided and it was thereafter that he in order to save himself struck a lathi blow on the head of the deceased.
7. Lal Singh and Des Rai P. Ws. are independent witnesses. They are in no wav related to or interested in the deceased and do not possess anv ill-will or grudge asainst the appellant. Lai Singh stated that he came to thp Grain Market to purchase sugar. Des Rai stated that he camp to purchase gram from the shop of Maman Chand. There is nothinff unlikely in their being present there. Their evidence admits of no doubt about their presence. Kalu Ram P. W. is a voung bov of 16. He is son of, sister of the deceased. He was Present with the deceased as he used to work with him in running the cart. The presence of these three eye-witnesses, in spite of their searching cross-examination. remained unchallenged. Thp defence has failed to shake them in any way to show the facts narrated by them at the trial court not to be true and correct and were in deviation of the facts stated in earlier statements made either before the police or before the committing Magistrate. On the basis of their evidence. I have no doubt that they saw the appellant causing the iniuries with Khunta P. 1 with which he armed himself, after the appellant and the deceased had been separated on altercation ensuins between the two.
8. The appellant was interrogated soon after his arrest. He made disclosure statement Exhibit P. J. Memo, pertaining to its recovery is Exhibit P. K. The disclosure statement and the recovery memo. have been proved by Pargat Singh. As- sistant Sub Inspector. Khunta P. 1 was recovered at the instance of the appellant. It was found lying concealed in bushes at a place at a distance of one mile from the Medical College.
9. The post-mortem of the deceased showed the existence of four iniuries on the person of the deceased. Out of these iniuries reproduced above iniuries Nos. 1, 3 and 4 have fractures underneath. The bones of the skull were found fractured and the brain damaged. The doctor gave the opinion that these three iniuries could be caused bv a sinelp blow with Khunta P. 1. The medical evidence is thus auite conformable to the ocular account of occurrence given bv the three eve-withnesses. Iniurv No. 2 was on the surface in the shape of a swelling on the right eye-brow. The doctor gave the opinion that the swelling could be caused as a result of fall of the deceased on a hard surface. According to the evidence of the eve-witnesses, the deceased, after receipt of the fatal blow on his head fell on the ground with his face downward. The fact deposed to by the eve-witnesses that he So fell down, thus, receives corroboration from the medical evidence showing the manner in which that iniurv could have been caused to the deceased.
10. Shri R. A. Saini appearing on behalf of the appellant did not contest on merits the veracity of the account of occurrence given by the three eve-witnesses nor did he challenge the genuineness of recovery of Khunta P. 1. He, however, contended that considering the circumstances, under which, the appellant gave blow to the deceased, the 'case fell under Exception 4 appended to Section 300 Indian Penal Code and consequently the offence being one of culpable homicide not amounting to murder, the appellant should have been convicted under Section 304 (part 1). Indian Penal Code. The argument of the learned Counsel is to the effect that even according to prosecution case, the trouble between the parties arose on demand of the dues by the deceased from the appellant followed by sudden exchange of abusive language and hot words between the two. The appellant caused bodily injury with Khunta to the deceased on his head with such force that that iniury has been found by Dr. A. S. Chowdhary, who examined that injury, to be sufficient in the ordinary course of nature to cause death.
11. Out of the above discussed facts of the case of the prosecution there emerges the conclusion that the appellant caused the death or committed culpable homicide by giving blow with the intention of causing bodily injury to the deceased and that',that bodily injury intended to be caused was found by Dr. A. S. Chowdhary, to be sufficient in the ordinary course of nature to cause the death of the deceased. Thus the act of giving blow by the appellant falls within the scope of clause thirdly of Section 300. Indian Penal Code and hence the appellant has committed the offence of murder. In order that the offence may be one of culpable homicide, not amounting to murder the case must be made to fall under one of the exceptions appended to that section. The Counsel for the appellant argued that culpable homicide committed by the appellant in the present case had been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and falls under exception 4. Exception 4 runs as follows;
Culpable homicide is not murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation It is immaterial in such cases which party offers the provocation or commits the first assault.
12. As the above language of the exception shows, the following two ingredients of the exception must be satisfied, if.case of a culpable homicide not amounting to murder is sought to be covered by it:
(i) culpable homicide has been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel.
(ii) The offender has not taken any undue advantage or acted in a cruel r unusual manner.
13. Taking into consideration the evidence of the eve-witnesses, the death of the deceased had been caused in a sudden attack by the appellant and not in a sudden fight and that too not in the heat of passion although upon a sudden quarrel. After the tempers had some high between the two consequent on altercation, they were separated by Lai Singh and Des Raj This separation made the heat of the moment subside. Then there, was no justification for the appellant to attack the deceased. The word, 'fight' implies mutual assault. It takes two or more to make a fight. One sided attack cannot constitute a fight. An incident will be a fight, if the parties are pitched and arrayed against each other and an act of violence of one party is met and countered by similar act of the other. The evidence of the eve-witnesses is unequivocal and eruptiatic that there was onlv unilateral attack with a solitary blow by the appellant on the head of the deceased without any attempt or initiative for attack on the part of the deceased. On that score too, ingredient (i) of the exception could not be held to have been satisfied. Thus the first ingredient in so far as attack by the appellant in the heat of the moment is concerned has not been satisfied.
14. We come to the second ingredient. Culpable homicide committed will not amount to murder, if the offender proves that he did not take undue advantage of his victim or act in a cruel or unusual manner.
15. The deceased was unarmed. According to the ocular account of the occurrence, he never in any way save indication of assaulting the appellant. He did not commit or even attempt to commit any act of violence against the appellant. Thus there was no apprehension to the appellant from the deceased of any assault. The appellant after taking out of his cart a Khunta. which is couple of inches thick, mostlv roundish and is three feet in length, as is clear from its diagram, caused iniuries to the deceased, which resulted in the death of the deceased. The extensive fracture of the parietal and frontal bones of the skull followed by damage of the durameter and brain shows that the blow had been delivered with great force and effective impact. To deliver a forceful blow with that weapon when there was no apprehension of any kind of harm to the appellant at the hands of the deceased is vocal for the fact of the appellant having taken undue advantage of the deceased and having acted in a cruel manner.
16. The case cannot be covered under Exception 4 of Section 300 and consequently cannot be treated as a case of culpable homicide not amounting to murder so as to fall under Section 304 (Part 1). Indian Penal Code. The offence committed is one of murder and not of culpable homicide not amounting to murder.
17. In the result the appeal fails and is disallowed. Thp conviction and sentences of the appellant are maintained.