SHARMA, J. - (1.) DISPUTE relating to boundary wall between two fields resulted in death of Shriphool for which four accused viz. Poonya, Prem Chand, Muniraj and Ramraj were charge sheeted. In Sessions trial bearing case No. 39/2001 learned Additional Sessions Judge (Fast Track) Gangapur City vide judgment dated October 20, 2001 found Poonya guilty under Section 302 IPC and convicted and sentenced him to suffer imprisonment for life and fine of Rs. 1000/- with stipulation. Prem Chand was convicted under Section 323 IPC and fine of Rs. 500/- was imposed on him. Charges against Muniraj and Ramraj were however not found proved. The State of Rajasthan assailed the finding of acquittal in Appeal No. 491/2002, whereas Poonya and Prem Chand preferred Appeal No. 60/2002. During the pendency of appeal appellant Prem Chand died on May 10, 2004.
(2.) THE prosecution story is as under:- Himmat Pal ASI Police Station Gangapur City (PW. 13) recorded parcha bayan (Ex. P. 5) of injured Dhan Singh (PW. 2) on July 8, 2000 at Government Hospital Gangapur City wherein he stated that on that day at 2 PM when he and his father Shri Phool went to their field Kuawala, he found that dol (boundary wall of the field) was broken by Poonya, Prem Chand, Muniraj, Ramraj and Kaushalya, whose field was adjacent to the field Kuawala. When Dhan Singh and his father Shri Phool Demanded explanation of the unauthorised act, they were given beating Poonya gave blow with spade on the head of Shriphool whereas Prem Chand caused injury with lathi on the shoulder of Dhan Singh. THE injured were removed to Hospital. On that Parcha Bayan a case under Sections 147, 148, 149, 323, 447 and 307 IPC was registered and investigation commenced. Shri Phool was referred to Jaipur but on the way he succumbed to his injuries and section 302 IPC came to be added. 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) Gangapur City. Charges under Sections 147, 148, 323/149, 302 and 302/149 IPC were framed against the appellants who denied the charges and claimed trial. THE prosecution in support of its case examined as may be 13 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. Death of deceased Shri Phool was indisputably homicidal in nature and as per postmortem report (Ex. P. 26) he received one ante mortem incised wound 5 cm x 2 cm on Rt. Parietal area with fracture. In the opinion of Dr. Shiv Kumar Gupta (PW. 11), autopsy surgeon, the cause of death was head injury which was sufficient to cause death in ordinary course of nature. Having pondered over the submissions advanced before us and on a careful scrutiny of material on record we notice that the occurrence took place without premeditation in a sudden fight, in the heat of passion and without premeditation in a sudden fight, in the heat of passion and without acting in a cruel manner. Informant Dhan Singh (PW. 2) himself deposed that while Prem Chand picked up quarrel with him, his father (Shri Phool) intervened. Had he not made attempt to interfere, he would not have received the injury. We also find that appellant Poonya inflicted solitary blow on the head of Shri Phool with spade (an agricultural implement) and did not repeat the same. The act of appellant Poonya thus falls within Exception 4 to Section 300 IPC. Coming to the appeal preferred by the State of Rajasthan we find that the prosecution could not establish that assembly of accused at the place of occurrence was unlawful. The informant Dhan Singh (PW. 2) in his deposition stated that while the accused were eracting new dol (boundary wall) on his field they were objected by him and his father Shri Phool, thereafter they hurled the abuses and inflicted blows on him and his father. Allegations against Muniraj and Ramraj are vague and we see no merit in the submissions of learned public prosecutor. For these reasons, we dispose of the instant appeals in the following terms:- (i) We partly allow the appeal No. 60/2002 of appellant Poonya and instead of Section 302 IPC we convict him under section 304 Part II IPC. Looking to the fact that the appellant Poonya has remained in custody for a period of more than five years and six months, we sentence him to the period already undergone by him in confinement. Appellant Poonya, who is in jail, shall be set a liberty forthwith, if not required to be detained in any other case. Appeal of appellant Prem Chand stands abated since he died on May 10, 2004. (ii) We dismiss the appeal No. 491/2002 preferred by the State of Rajasthan and confirm the finding of acquittal qua accused respondents Prem Chand, Muniraj and Ramraj. . ;