SHARMA, J. - (1.) GIGRAJ the appellant in Appeal No. 556/2000, along with Babu Lal, Kishan Lal, Smt. Prabhati and Ram Lal (respondents in Appeal No. 446/2002) faced trial in Sessions Case No. 23/1999 (38/1994) before the learned Additional Sessions Judge Shahpura District Jaipur, who vide Judgment dated September 6, 2000 acquitted Babu Lal, Kishan Lal, Smt. Prabhati and Ram Lal but convicted and sentenced GIGRAJ as under:- U/s. 302 IPC: To suffer life imprisonment and fine of Rs. 500/-, in default to further suffer one month imprisonment. U/s. 324 IPC: To suffer rigorous imprisonment two years and fine of Rs. 400/-, in default to further suffer one month imprisonment. U/s. 323 IPC: To suffer rigorous imprisonment one month and fine of Rs. 250/-, in default to further suffer fifteen days imprisonment. Substantive sentence were directed to run concurrently.
(2.) SINCE the judgment dated September 6, 2000 is under challenge in both the instant appeals, we proceed to decide them by a common judgment. The prosecution story is woven like this:- On September, 4, 1994 the informant Girdhari Lal submitted a written report at police station Shahpura stating therein that their fields situated behind the house of Gigraj. On September 4, 1994 when Arjun (younger brother of informant) went to the field he found that the cattles had caused loss to the field. Because of this hot words were exchanged between the families of Gigraj and Arjun. Thereafter about 6 PM Gigraj inflicted injuries with axe on the thumb and head of his father, when Teeja (the mother of informant) intervened, Gigraj gave two axe blows on her head. Ram Lal caused injury with lathi on the person of Murli. The informant attributed his injury to Mukesh, Prabhati and Babulal. On the basis of this report a case was registered for the offences under Sections 147, 148, 149, 323 and 307 IPC and investigation commenced. During investigation Smt. Teeja died and Section 302 IPC was also added. Post mortem on the dead body was performed. Necessary memos were drawn, statement 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 Shahpura District Jaipur. Charges under Sections 147, 148, 149, 323, 307 and 302 IPC were framed. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr. P. C. , the accused claimed innocence and three witnesses were examined in defence. Learned trial Judge on hearing final submissions decided the case as indicated herein above. We have heard learned counsel for the parties and examined the record. We notice that the death of Teeja was homicidal in nature. As per postmortem report (Ex. P. 31) following ante mortem injuries were found on the dead body:- "1. Abrasion 2 x 1 1/2 cm on the top of left shoulder covered with dark brown crust. 2. Contusion 2 x 1 1/2 cm on the post surface of left arm bruish in colour. 3. Contusion 1 x 1 1/2 cm on anterior surface of left arm bluish in colour. 4. Contusion 4 x 3 on outer surface of lower III of right arm bluish in colour. 5. Contusion 8 x 6 cm on front of upper III of Rt. side of chest bluish in colour. 6. Contusion 8 x 5 cm on front of upper III of Rt. side of chest bluish in colour. 7. Lacerated wound 5 x 1 cm x skin deep extremities are ant. & post. On valet margins shourpus famish. 8. Stitched wound 32. 00 cm long on left parietal region Beam shaped. 9.Stitched wound 11. 00 cm long just below Inj. 8 semi lower. 10. Stitched wound 1. 00 cm on lt. side of occipital. According to Dr. L. N. Sihag (PW. 24) death was caused on account of coma due to head injury. " Suraj Mal (PW. 19) vide injury report (Ex. P-11) sustained injuries thus:- 1. Incised Wound 10 cm x 3 cm x bone deep on Rt. frontal region 10 cm above. 2. Crash injury - left thumb. 3. Deformity - left upper area. Injury report (Ex. P-12) of Murlidhar (PW. 11) reads as under:- 1. Incised wound 3 cm x 3 cm x bone deep Occipital 10 cm above. 2. Bruise 6 cm x 3 cm x 2 cm Rt. clavicular region. 3. Bruise 6 cm x 3 cm x 2 cm Left Clavicular region. 4. C/o pain all over the body. Girdhari (PW. 9) also received injuries vide injury report (Ex. P. 13) as under:- 1. Bruise 4 cm x 4 cm Rt. parietal region. 2. Abrasion 25 cm x 25 cm medial side of mid of Rt. Forearm. 3. C/o pain left shoulder. Cross case also appears to be registered against the complainant party. Injury report (Ex. D. 10) shows that Mukesh S/o Gigraj received following injuries:- 1. Lacerated wound 105 cm x 1 cm x 0. 5 cm left parietal region skull. 2. linear bruise 12 cm x 2 cm on lumber region left side of back. Ram Lal also received injuries vide injury report (Ex. D-11) thus:- 1. Lacerated wound 1 cm x 1 cm x 0. 5 cm left parietal region skull. 2. Abrasion 1 cm x 0. 5 cm left side of forehead- 5 cm above left eye brow. 3. Congested luceal mucosa near lower linear face. 4. Bruise 6 cm x 3cm Rt. Scapular region back. 5. Bruise 12 cm x 3 cm Rt. Subcostal margin. 6. Bruise 8 cm x 3 cm Left side of back L1 L2 area. 7. Bruise 3 cm x 3 cm Rt. lung to dorsal side. 8. C/o pain left index finger. Injury report (Ex. D-12) of Gigraj reads as under:- 1. Lacerated wound 8 cm x 0. 5 cm x bone deep left parietal region of skull. 2. Lacerated wound 5 cm x 1 cm x bone deep Rt. side of frontal bone 10 cm above the Rt. eye brow. 3. Lacerated wound 8 cm x 1 cm x bone deep Rt. parietal region skull. 4. Lacerated wound 5 cm x 1 cm x bone deep mid of skull. 5. Lacerated wound 5 cm x 1 cm x bone deep Left side of occipital of skull. 6. Two lacerated wounds 5 cm x 1 cm x bone deep each 1 cm apart occipital region skull. 7. Bruise 6 cm x 5 cm near to Rt. eye. 8. Lacerated wound with swelling 2 cm x 1 cm x 1 cm left forearm posterior side. 9. Lacerated wound 2 cm x 1 cm x 0. 5 cm left index finger medial side & Proximal end. 10. Lacerated wound 1 cm x 0. 5 cm x 0. 5 cm lower end of Rt. upper arm. Vide X-way report (Ex. D-3) fracture of the mid shaft of ulna bone was found. The only contention of the learned counsel for the appellant Gigraj was that since the incident occurred all of sudden on a very trifle matter and the persons from both the sides had sustained injuries the offence does not travel beyond the scope of Section 304 Part II IPC. In regard to State appeal it was canvassed that no case could be proved against the co-accused and they were rightly acquitted.
(3.) PER contra, learned Public Prosecutor supported the impugned judgment of conviction and took us to the material on record to demonstrate that Gigraj was rightly convicted and sentenced. He also urged for conviction of other co-accused who have been acquitted by learned trial Judge. Having closely gone through the material on record we notice that the complainant party and accused party were neighbours and the incident occurred all of a sudden on a very trivial matter. Gigraj sustained as many as 1`0 lacerated wounds out of which 6 were on the skull. These injuries were not explained by the prosecution. Looking to the fact that the incident occurred all of a sudden and there was no premeditation on the part of Gigraj the offence has to be brought down from the first category of murder to culpable homicide not amounting to murder and Gigraj can be held guilty of the offence under Section 304 Part II IPC. We do not find the charges under Sections 325, 324 and 323 IPC proved against Gigraj beyond reasonable doubt. In order to appreciate the contentions raised on behalf of the State of Rajasthan in Appeal No. 466/2002, we have closely scrutinished the record. It appears that free fight ensured between the parties and learned trial judge was right in acquitting the co-accused Babu Lal,kishan Lal, Smt. Prabhati and Ram Lal of the charges levelled against them. ;