G.M. Lodha, J.
1. Sanwaliya has filed this appeal against the judgment of Sessions Judge, Sawaimadhopur, convicting him under Section 302 I.P.C. for the, murder of Chiranji and sentencing him to imprisonment for life.
2. Mr. Gupta, learned Counsel for the appellant very fairly and frankly has submitted that so far as the fact of causing injury by accused t Sanwalia to Chiranji by lathi blow is concerned, it is not necessary to go in details because firstly, the accused has admitted it in his statement under Section 313 Cr. PC, and secondly, it is amply proved on the record of the case by credible and reliable evidence. He however, submits that the peculiar facts and circumstances of the case to to show that the accused, who is an extremely old man of 78 years of age, wanted to stop the scuffle where his son who was interlocated with Chiranji would have been either done to death. as Chiranji and Chotey (son of the appellant) were trying to snatch 'Aakadi' from each other.
3 Mr. Mathur, learned Public Prosecutor submits that giving a lathi blow with full force on the skull, which is most vital part of the body clearly shows the intention of the accused to cause the death and, therefore, the conviction of the accused under Section 302 IPC is fully justified.
4. We have given a thoughtful consideration to the rival contentions of learned Counsel for the accused appellant and the learned Public Prosecutor.
5. PW 4 Dr. Nand Lal Sharma who examined the deceased on 17th April, 1983 has stated that injury No. 1 was sufficient to cause death in the ordinary course and it could be caused by lathi, Article-1. He further stated? that this injury was anti-mortem.
6. In order to appreciate the contention of learned Counsel, it would be necessary to mention in nut-shell the genesis of the crime. It was evening I at about 4 00 P.M. when the accused's son Chhotey and the deceased, who are admittedly joint cultivators of the agricultural land and were the joint owners of the wheat crop, entered into a controversy. Chiranji deceased started taking the wheat crop by 'Aakadi' and Sanwaliya wanted to stop him. Sanwaliya told Ghiranji not to do so. Accused's son Chhotey told Chiranji that he has not taken even one single straw from this crop so far and saying so Chhotey tried to snatch 'Aakadf' with which the deceased was spreading the crop.
7. On this Chhotey brought some forest produce to use as medicine on the injury of Chiranji and tied handkerchief on the head of Chiranji. Chotey s/o Sanwaiiya took Chiranji on his back for treatment.
8. The above circumstances are not only proved by the evidence of prosecution witnesses but also admittedly substantiated by the accused although he has not admitted on so many words that he brought lathi from his hut and asked the deceased not to spread the crop. The precision admission of the accused is as under:
iz'u 5& Jh Mk0 3 jkefoykl dk ;g Hkh dFku gS fd NksVs vkSj fpjUth es tc [khpkrkuh gks jgh FkhA rks vki lkaofy;k us ,d ykBh fpjUth ds flj ij ekjh] ftlls og fxj iM+k A [kwu cgus yxk A taxy ls j[kM+h eaxkbZ tks NksVw ysdj vk;k vkSj ely dj ?kko ij yxk nh vkSj muds flj ij vaxksNk cka/k fn;k A fpjUth csgks'k gks x;k A Jh Mk0 2 jkefoykl th dk Hkh ,slk gh dFku gS vkidks D;k dguk gS
mRrj & opu xyr gS A fQj dgk esjs vkSj fpjUth ds yM+kbZ gks x;h Fkh A ykBh ogh iMh Fkh eSus ykBh ekjh flj ij yxh] ;k dgka ;g eq>s ugh irk A
9. On a comprehensive study of the entire facts and circumstances and the evidence, we are unable to accept the contention of Mr. Gupta, learned Counsel for the appellant that the present case is not. covered by clause 3rd of Section 300 IPC. Clause thirdly of Section 300 reads as under:
If it is done with the intention of causing such bodily injury as the offender knows to b; likely to cause the death of person to whom the hurt is caused.
10. We are further of the opinion that since the lathi blow was given on the skull and undoubtedly the location of the injury shows that it was caused on the vital part of the body, the author of the injury must have known that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. We are further of the opinion that since the dispute was at a stance where all that was being done by the deceased was to spread the crop, which was joint one and it was the son the accused who wanted to snatch the 'Aakadi' (agricultural instrument; from the deceased, this act of the accused in causing injury at that point of time on the head of deceased without any excuse for incurring the risk of causing death or such injury as aforesaid and, therefore, in any case it is covered by clause 4thly, which reads as under:
If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid
11. However, we are convinced that the peculiar facts and circum-stances of the case brings the act of the accused within exception 4 of Section 300 IPC Exception 4 of Section 300 IP'C reads as under:
Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders's having taken undue advantage or acted in a crual or unusual manner.
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The accused is an old man of 76 years of age and since there was joint cultivation and his son was trying to convince the deceased that they have not taken even one single straw from the crop so far and, therefore, he should not take the croo, there was undoubtedly sudden fight between the parties. It is common knowledge that rural area of the country agriculture is the only secure of produce and therefore, since it was joint cultivation, the accused and his son had proper justification for objecting to the t king away of crop by the deceased alone. There was therefore no pre-meditation and it was a case of sudden fight on account of the passion which arose on the spur of the moment for ensuring the rightful saving of the crop by the accused and his father. The fight and quarrel was sudden and not pre-meditated and there is no doubt that the incident happened in the heat of passion. The fact that the accused caused only one injury and after causing it realised that it has caused more harm, the accused arranged for herbal as medicine and then he took the deceased on his back, goes to show that the accused did not take any advantage nor be acted in cruel or unusual manner.
12. In view of our above findings, wears convinced that exception 4 applies and, therefore the accused cannot be held guilty for culpable homicide amounting to murder, although he is certainly guilty of culpable homicide not amounting to murder.
13. As logical and legal conclusion of our above findings, the accused is guilty of Section 304(1) IPC as he has committed culpable homicide not amounting to murder and the act by which the death was caused was not done with the intention of causing death, but it was certainly of causing such bodily injury, which is likely to cause death.
14. Normally in a case of this nature, we sentence the accused for 7 years rigorous imprisonment but the accused in the present case is an old man of 78 years of age as par the judgment of trie trial court. An exceptional feature of the extreme old age of the accused has persuaded us to not to impose the normal sentence of 7 years, in such a case. We feel that in view of his extreme old age, the ends of justice would be met by imposing a sentence of 4 years rigorous imprisonment.
15. The appeal is, therefore, partially accepted to the extent indicated above. The conviction and sentence of accused Sanwaliya under Section 302 IPC is set aside and he is convicted for offence under Section 304(1) IPC and sentenced to undergo 4 years rigorous imprisonment. The iccusad would be entitled to the benefit of Section 428 Cr. P.C. by adjustment of period of sentence for which he has already remained in jail as under-trial prisoner or during investigation or after conviction.