SHARMA, J. - (1.) THE appellants were the accused on the file of learned Additional Sessions Judge Beawar bearing Sessions Case No. 38/1998 Learned Judge vide judgment dated August 18, 2001 convicted and sentenced the appellants as under:- Raju Singh : U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 200/-, in default to further suffer one months rigorous imprisonment. Chhotu Singh: U/s. 302/34 IPC: To suffer imprisonment for life and fine of Rs. 200/-, in default to further suffer one month rigorous imprisonment.
(2.) A written report was submitted by informant Mohan Singh at Police Station Beawar on June 9, 1998 with the averments that his grand son Raju Singh was murdered. Although accused were not named in the report, the informant orally informed the police that appellants Raju Singh and Chhotu Singh were the killers, Police Station Beawar registered a case under Section 302 IPC and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Beawar. Charges under Sections 302 and 302/34 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 12 witnesses. In the explanation under Section 313 Cr. P. C. , the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have heard the sub missions and scanned the record. On analysing the testimony of Dr. M. F. Thathera (PW. 9), who performed autopsy on the dead body we notice that the death of deceased was homicidal. As per postmortem report (Ex. P. 5a) deceased has sustained following ante mortem injuries:- " (1) Lacerated Wound 1/2" x 1/4" x 1/4" on Rt. knee. (2) Lacerated wound 1/2" x 1/4" x 1/4" just above Rt. knee (3) Incised wound on head just above left ear 1 1/2" x 2" x 1" wide. The cause of death was injury to brain, profuse bleeding leading to shock. The prosecution case of founded on the testimony of Maya (PW. 1), Koyali (PW. 5), Shankar Singh (PW. 7) and Sayari (PW. 10), Maya (PW. 1) was 12 years of age at the time of her examination in the trial Court. In her deposition she stated that the appellant Chhotu Singh caught hold of the deceased, whereas appellant Raju Singh inflicted one blow with spade on the head of deceased Koyali (PW. 5) did not say about the presence of Chhotu Singh but attributed the fatal blow to appellant Raju Singh. Shankar Singh (PW. 7) and Sayari (PW. 10) stated that the appellant Raju Singh inflicted one blow with spade on the head of deceased and fled away. Evidence of Maya, Koyali, Shanker Singh and Sayari is consistent so far as the allegations against appellant Raju Singh are concerned. Injury on the head of deceased has been attributed to appellant Raju Singh but the lacerated wound caused on the Right knee of the deceased have not been attributed to Raju Singh. Charge under Section 302/34 IPC in these circumstances could not be established against appellant Chhotu Singh beyond reasonable doubt. From the evidence on record, it appears that incident occurred all of a sudden and appellant Raju Singh did not act in cruel and unusual manner. He did not take undue advantage of the situation. Raju Singh committed offence without premeditation in the heat of passion upon a sudden quarrel. Appellant Raju Singh, is therefore, entitled to the benefit of Exception 4 to Section 300 IPC. For these reasons we dispose of the instant appeal in the following terms: (i) Appeal of appellant Chhotu Singh stands allowed and he is acquitted of the charge under Section 302/34 IPC. Chhotu Singh is on bail he need not surrender and his bail bounds stand discharged. (ii) Appeal of appellant Raju Singh is partly allowed and instead of Section 302 Ipc we convict him under Section 304 Part II IPC. Raju Singh has remained in custody for more than 6 years and 9 months, therefore the ends of justice would be met in sentencing him to the period already undergone by him in confinement. Raju Singh, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case. (iii) The impugned judgment stands modified as indicated above. . ;