S. K. SHARMA, J. - (1.) MOONGA Ram @ Mange Lal and Subhash, the appellants herein, were tried by the learned Additional Sessions Judge (Fast Track) Jhunjhunu in Sessions Case No. 99/2001 (43/1999 ). Learned Judge vide judgment dated February 27, 2002 convicted and sentenced them as under:- MOONGA Ram @ Mange Lal : U/s. 341 IPC : To suffer simple imprisonment for one month. U/s. 302 IPC : To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. Subhash : U/s. 341 IPC : To suffer simple imprisonment for one month. U/s. 302/34 IPC : To suffer simple imprisonment for one month. U/s. 302/34 IPC : To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. Substantive sentences were directed to run concurrently.
(2.) THE prosecution story is woven like this :- On October 18, 1999 at 9. 15 P. M. informant Narayana Saini (PW-1) submitted a written report (Ex. P/1) at Police Station Khetri to the effect that around 9 P. M. on the said day when appellant Moonga Ram, who was restrained by the Municipality from raising construction, started construction work flouting the orders of the orders of the Municipality, he was asked by the inhabitants of Mohalla to stop the work but Moonga Ram did not pay any heed and continued his construction work. Finding the crowd gathered near him, Moonga Ram became annoyed and inflicted a blow with iron-rod on the head of informant's brother Raghuveer (since deceased) and appellant Subhash caught hold of Raghuveer. On that report a case under sections 308, 341 and 323 IPC was registered and investigation commenced. In the course of investigation Raghuveer succumbed to his injury and Section 302 IPC came to be added. After usual investigation charge sheet was filed. In due course the cause came up for trial before the learned Additional Sessions Judge (Fast Track) for trial before the learned Additional Sessions Judge (Fast Track) Jhunjhunu. Charges under sections 302, 302/34 and 341 were framed against the appellants, who denied the charges and claimed trial. THE prosecution in support of its case examined as many as 11 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. In defence four witnesses were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. Death of deceased Raghuveer was indisputably homicidal in nature. As per post-mortem report (Ex. P/13) he received following ante mortem injuries:- Lacerated wound 5cm x 2cm bone deep left post parietal region of scalp. On exploration clotted blood is present on left parieto temporal region above periostium. There is linear fracture extending from post part of left parietal bone outer only to left temporal bone. In the opinion of Dr. Sumer Singh (PW-8) the cause of death was coma due to head injury. In the same incident appellant Moonga Ram also sustained injuries vide injury report (Ex. D/6), which are as under:- Three lower abrasions (two 4cm long 1cm apart parallel to each other and 3rd abrasion 5cm long crossing two parallel abrasions obliquely) on dorsal aspect of Rt. forearm 5cm above writ joint. Having closely weighed the evidence adduced at the trial we noticed salient features of the case thus:- (i) From the written report (Ex. P/1) it is evident that the deceased Raghuveer along with other inhabitants of Mohalla went to Moonga Ram and asked him to stop construction work. After altercations Moonga Ram lost his temper and inflicted blow with iron-rod on the head of Raghuveer; (ii) Lal Chand (PW-5), who was serving in Municipality, deposed that he along with one Laxman had gone to Moonga Ram and restrained him from raising construction. n his cross-examination he however admitted that 7 years old wall of 8 ft. height had already been constructed; (iii) Debu Ram (PW-6) and Chandra Prakash Saini (PW-7), the relatives of the deceased in their cross-examination admitted that a cross case based on the report of appellant Moonga Ram was pending against them in the Court of Additional Chief Judicial Magistrate Khetri; (iv) Sumer Singh (PW-8), who conducted autopsy on the dead body, admitted that in the post-mortem report (Ex. P/13) it was not mentioned that the injury sustained by the deceased was sufficient in the ordinary course of nature to cause death; (v) Aas Mohammad, SHO PS Khetri (PW-11) admitted that on reaching the hospital he found many persons agitating against the Doctor for his negligence in attending Raghuveer. He further admitted that on enquiry conducted by him Dr. Har Lal was found negligent in his duty; (vi) As per the testimony of Dr. J. P. Bugalia (DW-1) appellant Moonga Ram also sustained injuries vide injury report Ex. D/6.
(3.) WE thus find that the incident occurred all of sudden and without any premeditation. Raghuveer himself went to appellant along with other inhabitants of ward to obstruct the appellant from raising construction. After some hot exchanges the appellant Moonga Ram gave a solitary blow in the heat of passion and did not repeat the same. Appellant Moonga Ram did not take undue advantage of the situation. In these circumstances Exception IV of Section 300 IPC appears to have been attracted and appellant Moonga Ram can be held guilty under section 304 Part II IPC. In so far allegations against appellant Subhash are concerned, we find that he did not share common intention to commit crime and possibility of his over implication cannot be ruled out. Charges under section 341 IPC is however not established against both the appellants. For these reasons, we dispose of the instant appeal in the following terms:- (i) We partly allow the appeal of appellant Moonga Ram @ Mange Lal and instead of section 302 IPC we convict him under section 304 Part II IPC. Looking to the fact that the appellant Moonga Ram Mange Lal has already remained in custody for a period of more than six years and three months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We however acquit him to the charge under section 341 IPC. Appellant Moonga Ram @ Mange Lal, who is in jail, shall be set a liberty forthwith, if not required to be detained in any other case. (ii) We allow the appeal of appellant Subhash and acquit him of the charges under sections 341 and 302/34 IPC. Appellant Subhash is on bail, he need not surrender and his bail bonds stand discharged. (iii) The impugned judgment of learned trial Judge stands modified as indicated above. .;