IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT 1. Leela Ram @ Leela Dhar Vs. State of Rajasthan (D.B. CRIMINAL APPEAL No.580/2005) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 28-5-2005 in Sessions Case No.33/2003 passed by Shri Gopesh Chandra Dixit, RHJS, Additional Sessions Judge Khetri. 2. Satya Narayan Swami Vs. Rajesh & Others (D.B. CRIMINAL REVISION PETITION No.958/2005) D. B. Criminal Revision Petition under Sec.397 read with 401 Cr.P.C. against the judgment dated 28-5-2005 in Sessions Case No.33/2003 passed by Shri Gopesh Chandra Dixit, RHJS, Additional Sessions Judge Khetri. Date of Judgment: August 13, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Biri Singh ] for the appellant and Mr. Kamlendra Sihag] accused respondents. Mr. Ashvini Sharma, Public Prosecutor for the State. Mr. Ram Sharan Sharma, for the complainant. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) The appellant along with co-accused Rajesh Kumar and Jagdish Prasad, was put to trial before the learned Additional Sessions Judge Khetri. Learned Judge vide judgment dated May 28, 2005 while acquitting co-accused, convicted and sentenced the appellant as under:- U/s.302 IPC: To suffer imprisonment for life and fine of Rs.5000/-, in default to further suffer rigorous imprisonment for one year. U/s.341 IPC: To suffer simple imprisonment for one month. U/s.323 IPC: To suffer rigorous imprisonment for one year. The substantive sentences were ordered to run concurrently. 2. Acquittal of co-accused Rajesh Kumar and Jagdish Prasad has been called in question in revision petition No.958/2005. 3. The incident occurred on February 27, 2003 at 6.30 PM while Ram Kumar Swami was proceeding towards his flour-mill. Informant Satya Narayan Swami (Pw.2) in the written report (Ex.P-1) stated that on the way near the hand-pump Ram Kumar was surrounded by Rajesh, Jagdish and Leela Ram, who were armed with Axe, Jelly and Stones. They gave severe beating to Ram Kunwar. Gyarsi Lal also received injuries. After Ram Kumar was admitted to Hospital written report was handed over by the informant Satya Narayan at Police Station Singhana. On that report case under sections 341, 323, 336 and 307/34 IPC was registered and investigation commenced. Necessary memos were drawn and statements of witnesses were recorded. The accused were 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 Khetri. Charges under sections 341, 323, 336 and 302/34 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 8 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. The appellant further stated that Ram Kumar along with his brothers Gyarsi Lal, Satya Narayan and Natthu came to their house and started pelting stones, therefore ladies of accused party pelted stones. The appellants did not use any weapon. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated above. 4. The injury sustained by Ram Kumar was examined by Dr.H.S. Gothwal (Pw.5), who drew injury report (Ex.P-10) thus:- 1. Lacerated wound with left eye closed 10cm x ½cm x bone deep parietal bone region caused by sharp edged weapon. 2. Fresh bleeding, ventical, unconscious. According to Dr.H.S.Gothwal (Pw.5) as per post mortem report (Ex.P-9) the cause of death was coma as a result of head injury. 5. Gyarsi Lal (Pw.4) vide injury report (Ex.P-12) received following injuries:- 1. Bruise 5cm x 3cm ant. aspect of lower 1/3 of Lt. thigh. 2. Abrasion with deformity 1cm x ½ cm ant. aspect of lower 1/3 of Rt. forearm. 6. The prosecution case is founded on the testimony of Satya Narayan (Pw.2) and Gyarsi Lal (Pw.4). According to them appellant gave single blow with axe on the head of Ram Kumar. Dr.H.S. Gothwal in the injury report (Ex.P-10) of Ram Kumar stated that lacerated wound found on parietal region of Ram Kumar was caused by sharp edged weapon. In his cross examination however Dr.H.S. Gothwal deposed that the said injury could be caused by blunt weapon also. 7. From the evidence adduced by the prosecution at the trial fact situation emerges thus:- (i) Prosecution is able to establish that appellant inflicted injury with blunt object on the head of the deceased. (ii) Injury on head attributed to appellant gets corroboration from the post mortem report. (iii) The death was caused without premeditation and the appellant did not act in a cruel or unusual manner. Incident appears to have been occurred on a spur of moment. Something sparked suddenly and appellant inflicted single blow on the head of Ram Kumar. (iv) There is no trustworthy evidence on record to prove that co-accused Rajesh Kumar and Jagdish Prasad had shared common intention with the appellant. 8. The Fourth exception to Section 300 IPC covers acts done in a sudden fight. The term `fight' occurring in Exception-4 is not defined in the Indian Penal Code. `Fight' postulates a bilateral transaction in which blows are exchanged. The help of Exception-4 can be availed if death is caused:- (i) without premeditation; (ii) in a sudden fight; (iii) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (iv) the fight must have been with the person killed. 9. The fact situation emerges in the instant case brings the case of appellant within the ambit of Exception 4 to Section 300 IPC. We however find him guilty of the charges under sections 323 and 341 IPC. 10. Since there are exaggerations and embellishments in the evidence of prosecution witnesses the co-accused Rajesh Kumar and Jagdish Prasad cannot be held guilty for committing any offence, we thus find no merit in the revision petition preferred by the complainant. 11. For these reasons, we dispose of instant matters in the following terms:- (i) we partly allow the appeal of Leela Ram @ Leela Dhar and instead of section 302 we convict him under section 304 Part II IPC. Looking to the fact that the appellant has undergone confinement for a period of more than five years and five months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We, however, maintain his conviction and sentence under Sections 323 and 341 IPC. The appellant Leela Ram @ Leela Dhar, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) We find no merit in the revision petition No.958/2005 of complainant Satya Narayan Swami and it accordingly stands dismissed. (iii) The impugned judgment of the learned trial Judge stands modified as indicated hereinabove. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/