MATHUR, J. - (1.) BOTH these appeals arise out of the same judgment dated 12. 9. 1983 passed by the learned Sessions Judge, Balotra. The appeal No. 375/ 1983 was filed in representative capacity and another appeal No. 382/1983 was filed by the appellant from Jail. BOTH these appeals are disposed of by this common order.
(2.) THE brief facts giving rise to these appeals are that a first information report was lodged by one Mala Ram, Sarpanch, Gram Panchayat, Doli on 14. 12. 1982 at 8. 30 P. M. at Police Station, Mandi. It was stated therein that on 14. 12. 1982 at about 4 or 5 P. M. when he went to the bus stand for going for his domestic work to village Dhawa and at the bus stand in front of the shop of Baboo Nat the accused appellant Bhagirath son of Peera Ram resident of Doli gave beating to Lumba on account of enmity. On that place Bhanwariya, Gokaliya, Ghewariya, Narpat Singh, another Ghewariya and Anand Singh, Head Master were present and tried to intervene but since the accused appellant Bhagirath was armed with a knife they withdrew themselves from that place and thereafter Bhagirath gave 3 knife blows on scapular region, back and neck of Lumba. As a result of these injuries he fell down and became unconscious. His condition was said to be serious, and he was bleeding profusely. Gokal son of Chokha, Chhoga son of Khema, Jairam and some other persons took the injured in a motor for treatment to Jodhpur Hospital at Jodhpur. But after some time Lumba died and his dead body was brought back. On the basis of this information a case was - registered against the accused and investigation was taken up. During the course of investigation necessary site inspection memos and other relevant documents were prepared by the police. After close of the investigation the police filed a challan against the accused appellant Bhagirath under Section 302 I. P. C. in the Munsif Magistrate court. THE learned Magistrate ultimately committed the accused to the Court of Sessions for trial. The prosecution in support of its case examined about 14 witnesses and out of that P. W. 4 Bhanwaria, P. W. 8 Gokal, PW3 Ghewar Ram Acharya, P. W. 7 Malaram, PW 13 'ghewar Ram Bishnoi and PW 14 Narpatsingh were said to be the eye-witnesses of the incident. The learned Sessions Judge after due trial convicted the accused appellant Bhagirath under Section 302 and sentenced him to imprisonment for life with fine of Rs. 500/- and in default of payment of fine to further undergo 3 months rigorous imprisonment. We have heard the learned counsel for the appellant and the learned Public Prosecutor as well as Mr. Mohanani, learned counsel appearing for the complainant. Mr. Garg learned counsel for the appellant submitted that out of the aforesaid six eye-witnesses only 4 witnesses, namely, P. W. 4 Bhanwaria, P. W. 8 Gokal, P. W. 3 Ghewar Ram Acharya and P. W. 13 another Ghewaria are said to be the eye-witnesses. Learned counsel submitted that the testimony of these witnesses is not sufficient to establish the guilt of the accused as some of them are in relations and they are interested because of their relations. Learned counsel further submitted that in the present case, the deceased has received only three injuries. Out of them, the injury No. 1 was said to be fatal. The whole incident took place on account of sudden quarrel. Therefore, the offence cannot travel beyond sec. 3. 04 Part I I. P. C. The learned Public Prosecutor and Mr. Mohanani, learned counsel appearing for the complainant have submitted that all the eye-witnesses are natural witnesses and there is no reason to disbelieve them. Learned counsel further submitted that so far as the conviction of the accused appellant under sec. 302 I. P. C. is concerned the same is correct as the aceused appellant has inflicted 3 successive blows on the person of the deceased and there are no mitigating circumstances. Learned counsel submitted that the act of the accused was crual and unusual and, therefore, it does not over by exception 4 of sec. 300 I. P. C.
(3.) WE have considered the rival submissions of the learned counsel for the parties. P. W. 4 Bhanwaria who is owner of the tea-stall has deposed that on the fateful day one Narpat Singh along with deceased Lumba and Gokal were sitting at his tea-stall. He further deposed that he was preparing tea for the customers. At some distance Ghewaria son of Imartaram and another Ghewar Ram s/o Ghoturaram along with Head Master were also standing. Bhagirath and Lumba scuffle with each other. Narpat Singh and Gokal separated them. Thereafter Lumba turned back but he lost some balance. Then suddenly Bhagirath took out a knife and gave three blows on the body of the deceased Lumba. As a result of these injuries Lumba fell down and started bleeding. Thereafter Bhagirath ran away from that place on his cycle towards the village. He admitted in his cross-examination that Lumba and Head Master came to his hotel on foot and at that time Bhagirath was already sitting at his hotel. He also deposed that -Lumba was not armed with any lathi. To the same effect is. the statement of P. W. 8 Gokalram. He deposed that accused Bhagirath caught hold of the back and forced it downward. Thereafter, he gave these successive blows. To the same effect is the statement of P. W. 3 Ghewar Ram, P. W. 13 Ghewaria and PW 14 Narpatsingh. Therefore, it is not necessary to refer to their depositions. The gist of the testimony of these witnesses is that they have supported the version given out by P. W. 4 Bhanwaria. Therefore, in these circumstances, there is no reason to disbelieve the' testimony of these witnesses so far as giving of beating to deceased Lumba by accused appellant Bhagirath is concerned, which ultimately resulted in death of deceased Lumba. Now, the next question which has been seriously canvassed before us is that even if it is accepted that these injuries were caused by accused Bhagirath then too learned counsel submitted that the offence cannot travel beyond Section 304 Part I I. P. C. as the quarrel suddenly took place without any prema-ditation. As such this contingency is squarely covered by exception 4 to Section 300 I. P. C. In support of this contention, Mr. Garg, learned counsel for the appellant has invited our attention to Mishri Lal & Ram Kishan vs. The State (1), Imgiram vs. State (2), Kumari & Girraj vs. State of Rajasthan (3), Sarfulla vs. State of Rajasthan (4), and Simiya vs. State of Rajasthan (5) and Patia vs. State of Rajasthan (6 ). We need not to examine all these authorities as it will depend on the facts and circumstances of each case. In the present case, we are satisfied that; looking to the injuries caused to the deceased the incident was not premeditated as according to the prosecution story, the accused appellant Bhagirath was sitting at the tea stall and Lumba came later on. Suddenly first they scuffled and they were separated. Thereafter in the heat of passion the accused appellant. Bhagirath took out his knife and gave these blows. Out of those three blows injury No. 1 was said to be dangerous to life and ultimately caused death of the deceased. The injuries received by the deceased are as follows :- "1. At 4" from Rt. shoulder joint & 5" upward from the lower pole of the Rt. scapula & 3" away from vertebral calum. A stab wound 1-1/2" x 3 cm x 2-1/2" looking sharp cutting edge. " 2. At 4" from shoulder joint 3-1/2" down ward from the occipital Tube rotes of occipital bone of skull. A stab wound 1" x 2-3 cm x 2-1/2" deep & sharp cutting edge. 3. A stab wound 2" in length x4cm wide x 2" deep. 4" upward from the Anus edge is sharp. " The incident appears to have taken place just at the hotel when the accused and the victim along with other persons comfortably sitting. Suddenly on account of some altercation a scuffle ensued between the victim and the deceased. In the heat of passion the accused took out his knife and inflicted three blows on the deceased and out of that injury No. 1 proved fatal. In these circumstances, it cannot be said that the accused intended to cause death of the deceased. ;