S. K. SHARMA, J. - (1.) UDAI Singh, appellant herein, along with co-accused Ramroop and Hakim, was put to trial before learned Additional Sessions Judge (Fast Track) Karauli. Learned Judge vide judgment dated April 2, 2005 while acquitting co- accused convicted and sentenced the appellant as under:- U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer rigorous imprisonment for six months. U/s. 447 IPC: To suffer rigorous imprisonment for three months. The substantive sentences were ordered to run concurrently.
(2.) IT is the prosecution case that on August 19, 2002 at 8. 30 AM informant Hansram (Pw. 2) submitted written report at police station Kailadevi District Karauli to the effect that on the preceding day around 9 AM while the informant and other male members of the family had gone for their work, Mohar Singh (informant's elder brother) with other female members of the family remained at the house. Because of old enmity with the informant's family, Sridhar along with his family members entered the house of informant and Udai Singh (appellant) gave severe beatings with lathi to Mohar Singh, who died at 4 AM. On that report a case was registered under Sections 147, 148, 149 and 302 IPC and investigation commenced. Dead body of Mohar Singh was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, 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 (Fast Track) Karauli. Charge under Sections 447, 302 and 302/34 IPC were framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under Sec. 313 Crpc, the appellant claimed innocence. Two witnesses in support of defence were examined. Learned trial Judge on hearing final submissions while acquitting co-accused convicted and sentenced the appellant as indicated herein above. Mohru vide injury report (Ex. P-17) received following injuries:- 1. Lacerated wound 7cm x 1cm x bone deep vertically on left parietal region 13. 5cm over left ear 2. Lacerated wound 3cm x 3/4 cm x 1/2cm obliquely on right leg. As per Post Mortem report (Ex. P-18) in the opinion of Dr. Preetam Gupta (Pw. 19) the cause of death was coma resulting from fracture of both parietal bone. We have heard learned counsel for the appellant and learned Public Prosecutor and scrutinised the record. The only contention of learned counsel for the appellant is that since the incident occurred all of sudden and the appellant had no intention to kill the deceased, the appellant could not have been convicted and sentenced under Section 302 IPC. We have been taken through the testimony of Kansi Bai (Pw. 1), who in her deposition stated that on the day of incident her Jeth Mohar Singh was sitting out side the gate of her house. Suddenly Udai, Hakim, Suropi and Badami came armed with lathis. At that time female members of her family viz. Kampuri, Rajanti and Roopan were in the house and male members had gone to the field. The assailants started abusing and Udai inflicted lathi blow on the head of Mohar. Ramroop & Hakim also gave lathi blows on his hands. Mohar became unconscious and was removed to hospital where he died. Testimony of Kansi Bai gets corroboration from the evidence of Rajanti (Pw. 3), Roopan (Pw. 5) and Kampoori (Pw. 6 ). Having analysed the testimony of these witnesses from the point of view of trustworthiness, we find it consistent qua appellant only and it appears to be a sudden fight. The Fourth exception to Section 300 IPC covers acts done in a sudden fight. The term `fight' occurring in Exception-4 is not defined in the Indian Penal Code. `fight' postulates a bilateral transaction in which blows are exchanged. However the help of Exception-4 can be availed if death is caused:- (i) without premeditation; (ii) in a sudden fight; (iii) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (iv) the fight must have been with the person killed.
(3.) IN the case on hand there is nothing on record to suggest that there was premeditation on the part of the appellant. When altercations ensued the appellant lost his temper and inflicted blow with lathi on the head of Mohar Singh, which proved fatal. The appellant did the act in a heat of passion, he neither took undue advantage of the situation nor acted in a cruel or unusual manner. This fact situation brings the case within the ambit of Exception 4 to Section 300 IPC. For these reasons, we partly allow the appeal of appellant Udai Singh and instead of Section 302 we convict him under Section 304 part II IPC. Looking to the fact that the appellant has already undergone confinement for a period of more than five 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 of the charge under Section 447 IPC. Appellant Udai Singh, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. The impugned judgment of learned trial Court stands modified as indicated above. .;