JUDGMENT [ENTITY], J.
1. [ENTITY] (appellant herein) was put to trial before learned Additional Sessions Judge (Fast Track) No. 2, Kota, who vide judgment dated February 28, 2002 convicted and sentenced the appellant as under:
Under [SECTION] [ACT]:
To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for six months. Under [SECTION] [ACT]:
To suffer simple imprisonment for six months. Substantive Sentences were ordered to run concurrently.
2. It is the prosecution case that on September 20, 2001 at 8.15 AM informant [ENTITY] (Pw. 9) handed over a written report (Ex.P-4) to SHO Police Station Mahaveer Nagar. It was inter alia stated in the report that the informant's sister [ENTITY] (since deceased) was married to appellant and was residing and working in Madhu Smriti institution. There was dispute between [ENTITY] and appellant. On the said day around 7.30 AM [ENTITY] (Pw. 7) told the informant that the appellant gave beating to [ENTITY] due to which she became unconscious and was removed to MBS hospital where she was declared dead. On that report a case under [SECTION] and [SECTION] [ACT] was registered and investigation commenced. Postmortem on the dead body was performed. Necessary memos were drawn, statement of witnesses were recorded, the accused was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2 Kota. Charges under [SECTION] and [SECTION] [ACT] were framed. The appellant denied the charges and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under [SECTION] [ACT], the appellant claimed innocence and stated that from 1996 the case was pending before the Family Court and he was regularly paying maintenance to the deceased. He was falsely implicated in the case. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above.
3. Indisputably death of [ENTITY] was homicidal in nature. As per Postmortem Report(Ex.P- 12) following ante mortem injuries were found on the dead body:
1. Lacerated wound 8 x 2cm x bone deep on Lt. occipital & paietal scalp.
2. Lacerated wound 6 x 1cm x bone deep on scalp center.
In the opinion of Dr. [ENTITY] (Pw. 10) the cause of death was coma as a result of head injury.
4. Learned Counsel for the appellant canvassed that the appellant and deceased were residing separately and the appellant was regularly paying the maintenance to deceased thus there was no ill-will. It is further canvassed that the incident occurred all of sudden on a spur of moment when the appellant and deceased had altercations, therefore, no case under [SECTION] [ACT] is made out.
5. Per contra, learned Public Prosecutor supported the judgment of learned trial court and urged that since the appellant acted in a cruel and unusual manner he was not entitled to the benefit of exception to [SECTION] [ACT].
6. The prosecution case is founded on the testimony of [ENTITY] (Pw. 4) and [ENTITY] (Pw. 6), who were examined as eye witnesses of the occurrence. Factual situation emerges from the evidence of [ENTITY] and [ENTITY] may be summarized thus:
(i) Marital ties between the appellant and deceased were broken and litigation was pending. Appellant used to pay maintenance charges to the deceased and both resided separately. The deceased put her lock on the room belonging to the appellant and allowed [ENTITY] (Pw. 6) to keep her household goods in the said room.
(ii) The appellant used to ask the deceased to vacate the room but she did not agree.
(iii) On the date of incident the appellant broke open the lock of the room and removed the goods.
(iv) The deceased and [ENTITY], who were working together in [ENTITY] and jointly resided there, rushed to the room belonging to the appellant and started abusing him.
(v) On being provoked the appellant inflicted blows with iron rod on the person of the deceased.
7. In [PRECEDENT] , the accused who after getting provoked came with sharp edged weapon and got the same thrusted on the chest of the deceased, were found guilty under [SECTION] [ACT].
8. To invoke [SECTION] [ACT] four requirements must be satisfied:
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was done in the heat of passion; and
(iv) the assailant had not taken any undue advantage or acted in a cruel manner.
9. In the instant case all these ingredients are found present. It appears that when appellant and deceased had altercations the appellant got enraged from the abuses of the deceased, lost his temper and gave beating to deceased. The injuries were caused without any premeditation. However from the nature of injuries inflicted, the appellant should be presumed to know that his act of inflicting injuries would likely to cause death of the victim, even though he had no intention of causing death or such bodily injury as is likely to cause death, therefore the appellant is guilty of the offence punishable under [SECTION] [ACT].
10. For these reasons, we partly allow the appeal and instead of [SECTION], we convict the appellant under [SECTION], [ACT] and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer three months rigorous imprisonment. We however maintain the conviction and sentence under [SECTION] [ACT]. The sentences shall run concurrently.
The impugned judgment of the learned trial Judge stands modified as indicated above.