SHARMA, J. - (1.) TARU @ Tarachand, Mahaveer Prasad, Ramkaran and Smt. Meerki @ Meera, the arbitrators herein, were tried before the arbitrators Additional Sessions Judge (Fast Track) Ajmer in Sessions Case No. 91/2001 (104/99 ). Learned Judge vide judgment dated March 6, 2002 convicted and sentenced the arbitrators as under:- Tara @ Tarachand. U/s. 302 IPC. To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for three months. Mahaveer Prasad, Ramkaran and Smt. Meerki @ Meera: U/s. 323 IPC: Instead of sentencing them extended the benefit of provisions of Probation of Offenders Act, 1958.
(2.) INFORMANT Gheesa (PW-1), who lodged written report (Ex. P-1) and arbitrator Taru are real brothers. They shared water of common well turn by turn for the purpose of watering their respective fields. On September 2, 1999 it was his turn to lift water from the well. Around 3 PM when the informant and his son Gopal (since ) were about t pumping the well they were given beating by the arbitrators with axe and lathis. They were removed to hospital. Police Station Peesangan registered a case and investigation commenced. In the course of investigation Gopal died. Dead body was subjected to autopsy, other necessary memos were drawn and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the arbitrators Additional Sessions Judge (Fast Track) Ajmer. Charges under Sections 302, 302/34, 323 and 324/34 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 12 witnesses. In the explanation under Section 313 Cr. P. C. , the arbitrators claimed innocence. The defence of arbitrator was that informant and the attacked Ramkaran, who is the real brother of Gheesa since they did not want Ramkaran to part with his land to third person. In defence six witnesses were examined. Learned trial judge on hearing final submissions convicted and sentenced the arbitrators as indicated herein above. We have given our anxious consideration to the rival submissions and with the assistance o the arbitrators counsel we have gone through the evidence on record. Prior to death of Gopal his injuries were examined vide injury report (Ex. P. 22), which reads as under:- 1. Lacerated wound 6cm x 1cm x 3cm Right parietal & mid parietal scalp. 2. Contusion 4cm x 2cm left scapular region 3. Abrasion 3cm x 2cm Left shoulder 4. Abrasion 1cm x 1cm Rt. skin middle 1/3 As per post-mortem report (Ex. P-23) following injuries were found on the dead body of deceased Gopal:- 1. Abrasion 13cm x 1/2cm Rt. side chest 2. contusion 4cm x 2cm left scapular. 3. Abrasion 3cm x 2cm left tip shoulder 4. Abrasion 1cm x 1cm Rt. chin (middle 1/3 ). 5. Abrasion 2cm x 1/3cm left elbow posteriorly 6. Stitched wound 7cm Rt. Parietal region. Dr. Manohar Wadhwani (PW-10), who conducted autopsy on the dead body, opined that the cause of death was coma as a result of head injury. As per injury report (Ex. P-21) Gheesa (PW-1) received following injuries:- 1. Laceration 4cm x 1/2cm x 3cm Occipital parietal region sagitaly 2. Incised wound 3cm x 1/4cm x 3cm Rt. calf medially 3. Contusion 6cm x 2cm Rt. thorax back infra scapular region 4. Contusion 3cm diam left elbow dorsally 5. Contusion 4cm diam left thorax laterally Informant Gheesa is the star witness of the prosecution. In his deposition he admitted that Taru and Ramkaran are his real brothers and prior to the incident no altercation were even exchanged in regard to pumping water from the well between him and the arbitrators. he also admitted that at the north side of his field, fields of Tara Chand and Ramkaran are situated. From his testimony it also appears that incident occurred all of sudden and appellant Taru dealt with only one blow and did not repeat it. The defence of the appellants is that deceased Gopal and informant Gheesa were the aggressors and they came armed with weapons to quarrel with the appellant Taru and his brother Ramkaran. In support of this version the appellants examined Rampal (DW-1) who deposed that Ramkaran entered into an agreement to sell with him in connection with sale of his 1/3rd share of land. The agreement (Ex. D-5) was executed on August 28, 1999. On September 3, 1999 he had gone to village Nathuthala to meet Ramkaran and while Ramkaran was sitting on the cot in front of his hut, Gheesa, Gopal and Gita came over there. Gheesa was armed with Kassi. All the three then demanded explanation from Ramkaran as to why he was selling his share of land to Rampal thereafter Gopal caught hold of Ramkaran and Gheesa inflicted blow with Kassi that his on his hand.
(3.) FROM the material on record, factual situation that emerges are as under:- (i) Appellant Taru, Ramkaran and informant Gheesa are real brothers. (ii) Ramkaran agreed to sell his share of land to Rampal (DW-1 ). (iii) As per informant Gheesa himself, the appellants prior to the date of incident never interfered with the right of informant to lift the water from the common well. (iv) According to Rampal (DW-1) it was the informant and deceased came to Ramkaran and demanded explanation as to why he was selling his share of land and started quarrel. (v) Incident occurred all of a sudden and there was no premeditation on the part of the appellant. (vi) Appellant Taru dealt with only one blow and did not repeat the same. In the backdrop of factual situation of the present case we find that appellant Taru is the uncle of deceased and prior to the incident their relations were cordial. There was no previous enmity and the crime was committed without premeditation. The quarrel arose on a spur of moment and only one injury was caused in the heat of passion and appellant Taru did not take undue advantage or acted in a cruel or unusual manner. The case of appellant Taru @ Tarachand thus comes within exception 4 to Section 300 IPC with the result that the offence committed was culpable homicide not amounting to murder. In regard to conviction of appellants Mahaveer Prasad, Ramkaran and Smt. meerki @ Meera is concerned we are of the opinion that there is enough material on record against them and they have rightly been convicted under Section 323 IPC. For these reasons, we dispose of the instant appeal in the following terms:- (i) We partly allow the appeal of appellant Taru @ Tarachand and instead of Section 302 IPC we convict him under Section 304 Part II IPC. Looking to the fact that the appellant Taru @ Tarachand has already remained in custody for a period of more than six years, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. Appellant Taru @ Tarachand, who is in jail, shall be set a liberty forthwith, if not required to be detained in any other case. (ii) We dismiss the appeal of appellants Mahaveer Prasad, Ramkaran and Meerki @ Meera and confirm their conviction under Section 323 IPC. In our opinion, they have rightly been released under the provisions of Probation of Offenders act, 1958. (iii) The impugned judgment of arbitrators trial Judge stands modified as indicated above. . ;