S.S. Byas, J.
1. By his judgment, dt. 8.3.78, the learned Sessions Judge, Ganganagar convicted the accused Gura Singh under Section 302, I.P.C. and sentenced him to imprisonment for life. The accused has come up in appeal to challenge his conviction and sentence.
2. Briefly stated, the prosecution case is that deceased-victim Gandasingh had two sons Paharasingh and P.W. 1 Mohansingh. The appellant is the son of Paharasingh. Paharasingh passed away nearly 20 years ago. Gandasingh had forty bighas of agricultural land for cultivation. After the death of Paharasingh he gave thirteen bighas of land to the appellant, thirteen bighas of land to Mohansingh (PW 1) and retained the remaining thirteen bighas or so for himself. Gandasingh lived with Mohansingh (PW 1). As such Mohansingh was cultivating 26 bighas of land. The accused was not serious about the work and gathered a company of bad elements around him. Gandasingh used to ask the accused off and on to be serious at the work and give up the company of bad associates. In the morning of the day of occurrence 6.8.76, Gandasingh asked the accused to give up rowdyism and be careful about the work as he had to support his mother and wife. This led to a wordy wrangle between the two. Mohansingh intervened and the matter got sub-sided. Gandasingh lay down on a cot in his Bethak shown by mark '1' in site plan Ex. P. 2. The accused went away. Mohan Singh (PW 1) went to bring cattle fodder stacked in a Kotha, shown by mark '19' in Ex. P. 2. His wife Mst. Surjeet Kaur (PW 2) started cooking food in the courtyard situate just in front of the Bethak of Gandasingh. While she was cooking the food, the accused came with a 'Tamba' (lathi) and struck blows to Gandasingh with it. Surjeet Kaur raised cries. PW 1 Mohansingh and PW 3 Jogendra Singh, who were passing that way, rushed to help the victim. Mohansingh challenged the accused and the accused then went away. There was profuse bleeding from the wounds of the victim. Many persons from the locality gathered there. Gandasingh did not survive and succumbed to the injuries after a little while. P.W. 1 Mohansingh went on foot to Police Station Kesarsinghpur and verbally lodged report Ex. P. 1 of the occurrence at about 1.30 P.M. The Police registered a case and took up the investigation. Narainsingh (PW 9), A.S.I. arrived at the place of occurrence and while he was inspecting the site, PW 8 Prem Narain, Station House Officer, also, reached there. The site was inspected and the site plan was prepared. The inquest report of the victim's dead body was also prepared. The accused was arrested and in consequence of the information furnished by him whilst under police custody, Tamba was recovered. The bloodstained articles were also seized and sealed. The post-mortem examination of the victim's dead body was performed at about 10.30 A.M. on 7.8.76 by PW 6 Dr. Ram Lai Beniwal, the then Medical Officer in charge. Government Dispensary, Guiabewala. On examination, the doctor found the following injuries:
1) A contusion on chest wall anteriorly left side upper part 4' x 1'.
2) A contusion with fracture of the left forearm in its lower part 2' x 1'.
3) Lacerated wound on right hand dorsally at the base of thumb 2' 1/4' x 1/8'.
4) A lacerated wound on right maxilla lateral part 3/4' x ' x 1/8'.
5) A lacerated wound on the left maxilla below eye lid 2' x ' x ' with fracture of underlying bone.
6) A contusion on the base of nose ' x ' with fracture of nasal bone.
7) Four lacerated wounds on the forehead (with fracture of frontal bone) 1 x bone deep.
8) Fracture of lower jaw on the right side of mid line and on left side at the angle of mandible with a contusion at the angle of mandible 2' x 1'.
9) Laceration of membranes of brain at the sites of frontal bone fractures.
10) Laceration of frontal lobes of brain.
In the opinion of Dr. Beniwal, the cause of death of Gandasingh was multiple injuries on the body with fracture of bones and injury to vital organ brain leading severe haemorrhage and shock.
After when the investigation was over, the police submitted a challan against the accused in the Court of Munsif & Judicial Magistrate, Karanpur, who in his turn committed the case for trial to the Court of Sessions Judge, Ganganagar. The learned Sessions Judge framed a charge under Section 302, I.P.C. against the accused, to which he pleaded not guilty and faced the trial. Denouncing the prosecution case as fabricated piece of concoction he claimed absolute innocence. According to him, Gandasingh had executed a will in favour of the wife and sons of his uncle Mohan Singh (PW 1). He has been falsely implicated because Mohansingh wants to take the entire land of Gandasingh. During trial, the prosecution examined nine witnesses and filed some documents. In defence, no evidence was adduced by the accused. On the conclusion of trial, the learned Sessions Judge held the charge duly brought home to the accused. The accused was consequently convicted and sentenced as mentioned above. Aggrieved against his conviction and sentence, the accused has taken this appeal.
3. There is no room for doubt that the death of victim Gandasingh was not natural but homicidal. According to Dr. beniwal (PW 6), as stated above, as many as ten antemortem injuries were found on the victim's dead body. He further deposed that the injuries were sufficient in the ordinary course of nature to cause death.
4. In assailing the conviction, the first contention raised by the learned Counsel for the accused is that the evidence of the three witnesses viz., PW 1 Mohan Singh, PW 2 Mst. Surjeet Kaur and PW 3 Jogindersingh was not rightly weighed and scanned. It was argued that there was no occasion for PW 3 Jogindersingh to reach the place of occurrence. His services were borrowed by PW 1 Mohansingh to falsely implicate the accused. Jogindersingh was only a chance witness and no reliance could be placed on what he testified. It was further argued that PW 1 Mohansingh was in a Kotha situate nearly at a distance of 250 feet away from the place of occurrence and it was not possible for him to hear the cries of Surjeet Kaur. He, therefore, could not reach the site when the occurrence was taking place. So also, the testimony of PW 2 Mst. Surjeet Kaur could not be believed. She was the wife of PW 1 Mohan Singh and naturally she was at his disposal to state what he wanted her to depose. In reply, the learned Public Prosecutor supported the judgment of the Court below and submitted that the testimony of the three witnesses should not be discarded on the ground mentioned above. We have taken the respective contentions into consideration.
5. PW 2 Mst. Surjeet Kaur is the daughter-in-law of the deceased-victim. She stated that at about 9.00 or 9.30 A.M. on the day of occurrence, Gandasingh rebuked the accused for his rowdyism and advised him to be particular about his work. She was then, cooking the food. Accused Gurasingh went to his Kotha. Her husband Mohansingh (PW 1) went in another Kotha to bring cattle fodder from there. Accused Gurasingh came back with a Tamba and started beating Gandasingh in his Bethak. She was cooking food nearly at a distance of 25 feet from there. She raised cries and Jogindersingh (PW 3), who was passing nearby came there. Hearing the out-cries, her Husband Mohansingh (PW 1) also came there. Her husband challenged the accused and the accused ran away taking his Tamba with him. Gandasingh sustained a number of injuries on his person including the head. There was profuse bleeding from his wounds. Meharsingh, Modansingh and many other persons thereafter came. Gandasingh did not survive and succumbed after 15 or 20 minutes. She was cross-examined at length but she remained consistent throughout and stuck on her version that accused Gurasingh inflicted a number of blows to Gandasingh with his Tamba. She refuted the suggestion that she and her husband were not present at the place of occurrence and were away to their field. She also dismissed the suggestion that she and her husband got Gandasingh killed by somebody else and they were falsely implicating the accused for killing him. It is true that she is the wife of PW 1 Mohansingh but her testimony cannot be discarded merely on that count. Her presence on the spot is most natural. It was the time of cooking the morning meals and as such she could not be expected to go to her field, as suggested by the learned Counsel for the accused. Her name has been mentioned in the First Information Report-lodged without any delay.
6. PW 1 Mohansingh is the son of the deceased-victim. He deposed that the accused was not serious about his job and his father used to rebuke him off and on and used to ask him to be more particuar about his job as he had to support his wife and mother. At about 9.00 or 9.30 A.M. on the day of occurrence, his father Gandasingh again asked the accused to be particular about his job. It resulted in verbal wrangling between the two. He intervened and the matter got subsided. Thereafter Gurasingh went to his Kotha and Gandasingh lay on a cot in his Bethak. He (witness) went to a Kotha to bring cattle fodder from there. There he heard the cries of his wife. He rushed to the spot and saw the accused striking blows to Gandasingh with his Tamba. Jogindersingh (PW 3) was also present there. He challenged the accused and the accused ran away taking his Tamba with him. There were multiple wounds on the person of Gandasingh, including on his head. There was profuse bleeding from the wounds. Mohansingh, and Meharsingh and many other persons of the locality came there thereafter. Gandasingh did not survive and passed away after a few minutes. He went on foot to Police Station, Kesarsinghpur and lodged report Ex. P. 1 there at about 1.30 P.M. In cross-examination he denied the suggestion that he and his wife Surjeet Kaur were not present in their house when the occurrence took place and were at their field. He also refuted the suggestion that he has falsely implicated the accused. There is nothing in his cross-examination which may induce us to disbelieve his testimony.
7. It is true that the accused was living separately from PW 1 Mohansingh. The relations between them were not very happy. Mohansingh had lodged a proceeding under Section 107, Cr.P.C. against the accused before this occurrence. But this fact is not sufficient to discard the testimony of PW 1 Mohansingh or his wife PW 2 Mst. Surjeet Kaur. The fact that they are the son and daughter-in-law of the deceased-victim does not detract from the value to be attached to their testimony.
8. PW 3 Jogindersingh deposed that at about 9.00 or 9.30 A.M. on the day of occurrence he was going to the house of Gulabsingh (PW 4) to recover his labour charges from him. The house of Gulabsingh is situate just opposite to that of Mohansingh. When he remained 4 or 5 paces away, he saw that accused Gurasingh took up a Tamba, went to the Bethak of Ganda Singh and started striking blows to him with it. Mst. Surjeet Kaur was there in the house. He and she raised cries. Mohansingh also came there 1 and challenged the accused. The accused thereafter ran away taking the Tamba with him. Many persons came there. The name of this witness has been mentioned in First Information Report. In cross-examination he admitted that a criminal case relating to illicit liquor was pending against him. He denied the suggestion that it was he who had killed Gandasingh at the behest of Mohansingh (PW 1). We find no force in the contention of the learned Counsel that the testimony of this witness should be disbelieved as he has bad antecedents. Simply because some criminal case is pending against him, his testimony does not become incredible. It is true that he was examined by police two days after the occurrence, but that is immaterial specially when his name has been mentioned in the First Information Report which was promptly lodged without any delay. Gulabsingh (PW 4) of course denied that he owed any labour-charges to this witness. But the hostile attitude of PW 4 Gulabsingh does not persuade us to dismiss the testimony of this witness Jogindersingh. We also find no merit in the contention of the learned Counsel that Jogindersingh is only a change witness. He had given reasons as to how he happened to pass in the Courtyard of the victim. A look into site plan Ex. P. 2 will reveal that the house of Gulabsingh (PW 4) is situate just opposite to that of the victim and anybody can pass freely from west to east.
9. The learned Sessions Judge accepted the evidence of these witnesses as true arid on a careful consideration we are unable to take a different view. The evidence of the witnesses should be properly assessed, sifted, scanned, scrutinized and appreciated keeping in view the surrounding circumstances and the background in which the offence is alleged to have been committed. Mere suggestions in cross-examination, however, ingenious are of no evidentiary value unless accepted by the witness or proved by other evidence. There must be something inherent in the statement of a witness to disentitle him to be believed. There is no presumption of perjury against the oral testimony of a witness. But before acting upon such testimony its credibility should be tested both. intriguingly intrinsically and extrinsically. There is nothing inherent in the statement of these three witnesses to disentitle them to be believed. It does not appear from the circumstances that PW 3 Jogindersingh was a chance witness or that his services were procured and purchased by PW 1 Mohansingh to falsely depose against the accused. Gandasingh was living with Mohansingh. He was an old man and it was Mohansingh and the members of his family who were looking after him. It is beyond our comprehension, that Gandasingh would be done to death by Mohansingh or at his behest by Jogindersingh or somebody else. We cannot assume the facts merely on conjectures and surmises as was suggested by the learned Counsel for the accused. In our opinion, the evidence of these three witnesses is beyond reproach. Their testimony is free from suspicion and above board. No risk is involved in convicting the accused on the strength of what they testified on oath.
10. It is true that deceased Gandasingh had made a will of all his agricultural lands including that in possession of the accused in favour of the wife and sons of PW 1 Mohansingh. The wife of Mohansingh has filed a suit on the basis of will against the accused and others after this incident. But it is not sufficient to persuade us that Mohansingh wanted to finish Gandasingh as soon as possible. It was he and his family who were to be benefited by that will. We are, therefore, unable to accept the contention that Gandasingh could be put to death by Mohansingh or by somebody else at his investigation.
11. It was next contended by the learned Counsel that the offence made out is not covered by Section 302, I.P.C. It was argued that when the background in which the offence was committed is kept in mind, it appears that there was an exchange of hot words and abuses between the accused and the deceased-victim. In the First Information Report it was mentioned that an exchange of abuses had taken place between them. It was argued that these circumstances point out that Gandasingh was killed by the accused without premeditation in a sudden fight and upon a sudden quarrel. Learned Counsel tried all his efforts to bring the case within Exception (4) of Section 300, I.P.C. We are again unable to accept his contention. In order to bring a case within Exception (4), it must be proved that the act was done (1) without premeditation, (2) in a sudden fight, (3) in the heat of passion, (4) upon a sudden quarrel and (5) without offender's taking undue advantage or without acting in a cruel and unusual manner. All these five elements must exist in order to bring the case within Exception (4). If any of them is missing, this Exception cannot be brought into play. Here in the instant case, all these five elements of Exception (4) are completely missing. After a verbal wrangling the accused went and came back with a Tamba. He then struck blows to the victim. There was no fight between him and the victim. The fight implies an exchange of blows or mutual attack by both the parties. Where it is as one-sided affair, there is no fight at all to bring the case within Exception (4). The very word 'fight' implies that it is a bilateral act and excludes the case where violence is used by one of the parties.
12. Mr. Garg appearing for the accused strenuously contended that exchange of blows is not necessary to constitute a fight and words may be as provocative as blows. Reliance was placed on certain observations made in Hans Raj Singh v. Emperor AIR 1946 Lah 41 : 47 Cri LJ 234. We are unable to accept the contention. Mere exchange of abuses and hot words (which is even not present here in the instant case) does not constitute fight within the meaning of Exception (4). Where it is all an one-sided affair and only the accused caused injuries to the victim who does not retaliate, there is no fight at all to attract the exception. We are fortified in our view by the observations of their Lordships of the Supreme Court in Bhagwan Munjaji v. State of Maharashtra 1978 SCC (Cri) 428 : 1979 Cri LJ 49 and, Mohammad Mytheen Shanhud Hammed v. State of Kerala 1979 SCC (Cri) 1010 : 1980 Cri LJ 192. In face of the pronouncement of their Lordships of the Supreme Court, the view taken by the Lahore High Court cannot be regarded as a good law. It may be mentioned that the view taken by the Lahore High Court is solitary view on the point and has not been followed by any other High Court. Since there was no fight, exception (4) cannot be brought into play for the rescue of the accused. Reliance was also placed on certain observation made in Chamuru Budhwa v. State of Madhya Pradesh : AIR1954SC652 and Babulal v. State of Rajasthan 1976 Raj LW 345 : 1977 Cri LJ 59 by Mr. Garg to bring the case within exception (4). It may be stated at once that these two authorities do not cover a case of 'fight' as contemplated by Exception (4). These were the cases where only one blow was caused to the victim, and it was taken that it was due to exchange of abuses and hot words. There is nothing so like that in the instant case.
13. We have also examined the contention of Mr. Garg whether the case is covered by exception 1 of Section 300, I.P.C. The facts of the case do not permit us to apply this exception, either. The provocation is an external stimulus which should be objectively gained. Merely uttering abusive words would not amount to grave and sudden provocation. It is true that at times words and gestures may under certain circumstances cause grave and sudden provocation but in the instant case the facts do not disclose any cause of grave and sudden provocation for the accused. None of the three eye-witnesses stated that the victim addressed any abusive words to the accused nor any of them was cross-examined in this light. Of course, there is a reference in the FIR that there was 'Gali Galauch' between the victim and the accused but there is no evidence to show that there was really an exchange of abuses between the victim and the accused. Even if we assume that there was 'Gali Galauch', in our opinion, it was not sufficient to cause grave and sudden provocation. Moreover, as has been stated by PW 1 Mohansingh and PW 2 Surjeet Kaur, the victim asked the accused to give up rowdyism and to be particular about his work as he had to support his mother and wife. It was a grand-parent's advice to a grandson and if the, grandson makes a murderous assault on the grandfather because of his parental advice, we are unable to make out a case of grave and sudden provocation for the accused.
14. It was then argued that the offence made out is not covered by any of the first two clauses of Section 299 or Clauses 1 to 4 of Section 300, I.P.C. The victim was the real grandfather of the accused. He, therefore, could not be attributed the intention to kill him. What can be attributed to him is simply the knowledge. As such the case is covered by Clause III of Section 299 and the offence made out would fall under Clause II of Section 304, I.P.C. We are unable to accept this contention too. The victim was landed as many as ten blows. The frontal bone was found completely fractured. The lower jaw was also found fractured. The injuries were caused to vital organs. In cross-examination, Dr. Beniwal (PW 6) stated that external injury No. 7, which resulted in injuries Nos. 9 and 10, was in itself sufficient in the ordinary course of nature to cause death. The intention of the accused to kill is manifest when he inflicted mortal blows on the head of the victim resulting in the fracture of skull bones. The victim was an old man fully unarmed and defence less. The head injury was found to be sufficient in the ordinary course of nature to cause the death. The case is, therefore, squarely covered by Clause III of Section 300 and the offence made out is punishable under Section 302, I.P.C.
15. We are quite conscious that fouler the crime is, the clearer and plainer ought the proof of it to be. All the probabilities that appear from the evidence and surrounding circumstances should be taken into consideration while judging the question of the guilt and innocence of the accused. The evidence of the three eye witnesses cannot be put at discount when it is judged in the circumstances and background in which the offence was committed. The accused had a grudge against his grandfather who used to rebuke him off and on.
16. No other contention was raised. From what has been discussed above, we find no force in this appeal. The accused was rightly convicted and sentenced.
17. The appeal of accused Gurasingh is consequently dismissed.