Gopal Krishna Sharma, J.
1. This appeal has been preferred by appellant Nathu through the jail authorities against his conviction Under Section 302, IPC.
2. The learned Sessions Judge vide his judgment dated 30th Sept. 1982, found the appellant guilty of the offence Under Section 302, IPC, and sentenced him to imprisonment for life and a fine of Rs. 1,000/-, and in default of payment of fine, to further undergo 7 months' R.I. It was also directed that from the amount of fine realised from the accused, a sum of Rs. 800/- be given to Mst. Dali.
3. The incident took place on 4th July, 1982, but the report Ex. P1 in this connection was lodged on 5th July, 1982, by one Prabhat at Police Outpost - Newai, where it was alleged that on 4th July, 1982, at about 8.30 p.m., he came to his house from his shop. He found that on the Chabutra in front of his house, Kishore was lying injured, and a large number of persons had collected there. There were injuries on the left side of the stomach of Kishore and blood was coming out. Kishore was telling that his brother Nathu had inflicted knife-blows to him. Prabhat also inquired from Kishore, who told him that he was inflicted knife-blows. Kishore then was taken to hospital, Newai, where he was treated by the doctor. On 5th July, 1982, at about 3 P.M., he died in the hospital on account of the injuries. After his death he (Prabhat) came to police station and submitted this report. On this report, a case Under Section 302, IPC, was registered and investigation started. After completing the investigation, the police submitted a challan against Nathu accused in the Court of CJM, Tonk; and then the accused was committed to the Court of Sessions Judge for trial. The iearned Sessions Judge, Tonk, framed charge Under Section 302, IPC, against Nathu appellant, who pleaded not guilty and claimed trial. The prosecution in support of its case, examined 6 witnesses in all. The case of Nathu accused was that he and Kishore were real brothers and Kishore was younger to him. He was supporting him since his childhood. He further contended that on account of enmity, he has been entangled in this case by one Chhotiya who used to come to his house.
4. It is not disputed that Kishore died on account of injuries. Report Ex. P.1 indicates that when Prabhat came to his house, he found Kishore lying on the Chabutra in front of his house having injuries on his stomach. Mst. Dali PW 3, who is the widow of deceased Kishore, has stated that Nathu had asked Kishore as to whether he had taken his 'Chaddhi', whereupon, Kishore replied in negative. They both were inside the 'Gwadi'. Kishore at that time, was lying on a cot. Hearing the reply of Kishore, Nathu inflicted three knife-blows to Kishore on his stomach. While Kishore and Nathu were fighting with each other, they came to the 'pol' where Kishore fell down on the ground and Nathu inflicted knife-blows to him. Her (Mst Dali's) husband (Kishore) was then taken to hospital where Nathu also told in presence of Prabhat and Mst. Dali that he had inflicted knife-blows to him. Prabhat PW 1 who lodged the report at the police station, has been declared hostile. He tried to save Nathu. The reason was obvious that Nathu accused is his nephew. Nathu accused and deceased Kishore were real brothers. Nobody wanted to report the matter to the police, because, the dispute had taken place in between two real brothers. This was the reason that they did not inform the police but took Kishore to hospital for medical treatment. When ultimately Kishore died in the hospital, Prabhat submitted the report, Ex. P.1, at the police station. This shows that the deceased and the accused being real brothers and there being no other male member in their house except Prabhat who is their uncle, they wanted to hush up the matter and did not lodge any report. But, when Kishore died in the hospital, the report was submitted in the police. On account of being uncle, PW 1 Prabhat tried to save the accused. But, he could not deny this fact that he had submitted the report, Ex. P.1 in the police. In his cross-examination, he had to admit that the said report is correct. So, we can only infer that Prabhat subsequently wanted to help the accused. He has admitted that he had filed the report Ex. P.1. This report Ex. P1 is corroborated by the statement of Mst. Dali, PW 3 widow of Kishore deceased.
5. Therefore, we are satisfied and hold that accused Nathu gave knife-blows to Kishore. Dr. Gopal Singh Bajawat PW 5, who examined the injuries of Kishore and subsequently conducted the postmortem examination on the dead body of Kishore, opined the death had occurred due to perforation of the small intestine and shock caused by the injuries. Kishore had three injuries on his person. All the injuries were incised wounds. Injury No. 1 was just above the left iliacrest. Injury No. 2 was on the left chest anteriorly in between 1 lth and 12th ribs. Injury No. 3 was on the back 2 1/2' away from the left posterial region angle. Thus, from the statement of the doctor and the post-mortem report, it is clear that Kishore died on account of the injuries. So, the death of Kishore was not a natural death, but was homicidal in nature.
6. The learned amicus curiae has not argued on the factum of the case, but has only argued that the dispute took place between two real brothers. Both were living together, and there is nothing on the record to show that there was any enmity in between these two brothers. According to him, accused Nathu had no intention of causing death of his younger brother, Kishore. The qaarrel took place on a petty matter regarding a 'Chaddhi'. When Nathu inquired from Kishore about it, Kishore replied in negative, and this led to the quarrel between them. In that sudden quarrel, Nathu infilcted knife-injuries to Kishore. Therefore, it was argued that the case is not covered Under Section 300, IPC, but it is covered by Exception No. 4 to this section.
7. The learned Public Prosecutor, on the other hand argued that Exception 4 to Section 300, IPC, is not applicable to the present case. According to her, the accused inflicted three knife blows, and looking to the injuries, it is evident that the accused had the intention of causing death of Kishore. Hence, she argued that the case is completely covered by para 1 of Section 300, IPC, and the learned Sessions Judge has rightly held the accused-appellant guilty of the offence Under Section 302, IPC.
8. We have considered the arguments of both the learned Counsel, and also perused the entire evidence on the record. There is nothing on the record to show that there was any enmity between the two real brothers, who were living together jointly in the same house. In the night, when Nathu accused inquired about his 'Chaddhi', Kishore replied in negative and this made them to quarrel. Also, there is nothing on the record to show that there was any pre-plan to commit murder of Kishore. Without any pre-meditation, a sudden quarrel took place on the matter of a Chaddhi, and in that sudden fight, in the heat of passion, Nathu inflicted knife-blows to Kishore, as a result of which, Kishore ultimately died. So, the case is completely covered by Exception 4 to Section 300, IPC. It cannot be said that the accused inflicted the injuries with the intention of causing such bodily injury which was sufficient in the ordinary course of nature to cause death. The doctor has, no doubt, stated that the injuries were sufficient in the ordinary course of nature to cause death, but, it cannot be inferred that the accused had any intention of causing such bodily injury which ultimately would cause death of Kishore. In the heat of passion, in a sudden fight without any pre-meditation, he inflicted the knife-blows, without any intention that he would cause that injury and that would be sufficient in the ordinary course of nature to cause death. Hence Para 3 of Section 300, IPC is not applicable to the present case, but it is covered by Exception 4 to this Section. The act was committed by the accused without any premeditation and that too in a sudden fight upon sudden quarrel regarding a Chaddhi in the heat of passion. Therefore, it cannot be said that the accused having taken undue advantage, acted in a cruel and unusual manner. Therefore, in our opinion, this case is completely covered by Exception 4 to Section 300, IPC. The learned Sessions Judge has failed to appreciate the law in a proper way.
9. Hence, we do not agree with the finding of the learned Sessions Judge that a case Under Section 302, IPC, is made out against the accused-appellant. Hence, he is not found guilty of the said offence.
10. In the result, the appeal is partly accepted. The accused-appellant is acquitted of the offence Under Section 302, IPC. He is convicted of the offence Under Section 304 I, IPC and sentenced to 7 years' RI and a fine of Rs. 2,000/-. In default of payment of fine, he shall further undergo 6 months' R.I. Nobody is there to look after the widow of the deceased, Mst. Dali. We, therefore, direct that the amount of fine, if realised,- be paid to Mst. Dali. The accused-appellant is in jail. He be detained in jail to undergo the sentence of imprisonment awarded to him by this Court. The learned Sessions Judge, Tonk, shall take steps for awarding the fine to the widow of the deceased.