SHARMA, J. - (1.) GIRRA j, the appellant herein, and six other co-accused viz. , Mst. Uganti, Mst. Roopbai, Mst. Sondei, Murari, Hansraj and Bharat Lal, were put to trial before the learned Additional Sessions Judge (Fast Track) Hindaun City in Sessions Case No. 54/2001 (6/2000 ). Learned Judge vide judgment dated January 22, 2002 convicted only the appellant under Section 302 IPC and sentenced him to suffer imprisonment for life and fine of Rs. 1000/- with default stipulation. Against the finding of acquittal the State of Rajasthan preferred petition seeking leave to appeal No. 3/2003, whereas GIRRAj has assailed the judgment of his conviction in Appeal No. 403/2002.
(2.) THE prosecution story runs as under:- On October 23, 1999 the informant Samay singh (PW-2) submitted a written report at (Ex. P-2) at Police Station Hindaun City with he averments that on the said day at 9-10 a. m. when the informant and his family members had been to their field Girraj, Bharat Lal, Hansraj, Murari and their women armed with lathis and pharsis attacked on them. Girraj inflicted Phrase blow on the head of Itwai (since deceased) and Bharat Lal dealt with lathi blow that was laid on her head. Others also gave lathi-blows on the person of Itwai and Rajanti. Hearing informant's hue and cry Udai, Ramphool etc. came and rescued them. On that report a case under Sections 147, 323, 342 and 307 IPC was registered and investigation commenced. itwai was referred to Jaipur Hospital, where she was operated upon but later on she succumbed to her 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) Hindaun City. Charges under Sections 148, 302, 302/149 and 323/149 IPC were framed against the accused, who denied the charges and claimed trial. THE prosecution in support of its case examined as may as 14 witnesses. In the explanation under Section 313 Cr. P. C. , the appellant claimed innocence. In defence Mohan Lal (DW-1) was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant 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. Prior to her death the injuries sustained by Itwai were examined vide injury report (Ex. P-7) which are as under:- 1. Lacerated wound 1. 5cm x. 5cm x skin muscle deep on right parietal region of (skull) head in upper region. 2. Incised wound 4cm x 1cm x bony deep on right parietal region of head below the injury No. 1 bleeding margin clean cut. 3. Contusion with swelling 6. 5cm x 3cm on right forearm in middle part outer side tenderness 4. C/o pain chest no visible injury seen. 5. C/o pain gluteal region no visible injury seen. 6. Abraded swelling on Dorsal aspect of right hand & wrist region an area of 10cm x 2. 5cm. On her death Itwai was subjected to autopsy and as per post- mortem report (Ex. P-12) following ante-mortem injuries were found on the dead body:- 1. Stitched operated scar 30cm (Rt.) tempro parietal temporal region 2. stitched wound 3cm (Rt.) parietal region with pinkish scar soft vertical (Rt.) parietal irregular. 3. Diffuse swelling (Rt.) parieto temporal region on Ex. sub scalp haemotoma dark brown yellow colour on (Rt.) parieto temporal region on Ex. (Rt.) side four bur holes found bone found stitched a Falp of bone 7x5cm (Rt.) tempro parietal region get foam found may little EDH on (Rt.) temporal parietal region membranes found congested tissue with brain found Oedomatus congested on Ex. D. In the opinion of Dr. Sumant Datta (PW-12) the cause of death was injury to skull and brain which was sufficient to cause death in the ordinary course of nature. Rajanti (PW-4) vide injury report (Ex. P-8) received following injuries:- 1. Swelling 4cm x 2cm left parietal region of head. 2. Swelling 4. 5cm x 2cm on left shoulder region. 3. Swelling of 3cm x 2cm on left upper arm lower part outer side. In the same incident accused Sondei and Uganti also received injuries. Sondei vide injury report (Ex. D-7) received following injuries:- 1. Swelling 6cm x 3cm on left fronto parietal region of head. 2. C/o pain right shoulder region no visible injury seen. 3. Red bruise 6cm x 2cm on back lumber region lower part Rt. side. 4. C/o pain right thigh no visible injury seen. 5. C/o pain right leg lower part no visible injury seen. Uganti vide injury report (Ex. D-8) received following injuries:- 1. C/o pain left shoulder no visible injury seen. 2. C/o pain back & chest no visible injury seen. 3. C/o pain right supro scapular region no visible injury seen. Having pondered over the rival submissions and on a careful scrutiny of the material on record to which our attention has been pointedly invited, we notice that the learned trial Court in the impugned judgment categorically observed that the accused party on the date of incident only wanted to oust the complainant party from the field in dispute and they did not have any intention to kill Smt. Itwai. Learned trial Judge in the judgment observed as under:-
(3.) LEIW. kz ?kvuke dks ns[kus ds ckn ,slk ugha ik;k tkrk gs fd eq- brokbz dks dry djus dk vfhk;qdrx. k dk dksbz mn~ns'; gks** (Taking overall view of the incident it could not bound that the accused persons had any intention to kill Smt. Itwai.) However, from the statements of witnesses Samay Singh (PW-2), Ram Phool, Udai Singh (PW-3) and Rajanti (PW-4) it is established that the fatal injury on the head of deceased Itwai has been attributed to appellant Girraj. The only question for consideration, therefore, is whether the act of appellant Girraj constitute the offence under Section 302 or Section 304 Part II of Indian Penal Code. In the circumstances herein discussed, we find that the appellant Girraj wielded a weapon like Pharsa, therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation he would be guilty of committing an offence under Section 304 Part II of the Indian Penal Code. Coming to the petition seeking leave to appeal filed by the State of Rajasthan, we find that the complainant party and accused party both came to the field in dispute for trial of their strength and free fight ensued, therefore, the provisions contained in Sections 148 and 149 IPC are not attracted. We find no infirmity in the finding arrived at by learned trial Judge qua co-accused Hansraj, Mst. Uganti, Mst. Roopbai, Mst. Sondei and Murari. ;