N.M. Kasliwal, J.
1. On the request of learned Counsel for the accused appellants as well as learned Public Prosecutor, arguments were heard in the main appeal.
2. This appeal by accused persons Moolya and Gangadhar is directed against the judgment of learned Additional Sessions Judge, Dausa, district Jaipur, dated 12-1-1983, convicting the accused Mooliya under Section 302 read with Section 34 IPC and sentencing to life imprisonment and under Section 323 IPC six months rigorous imprisonment and accused Gangadhar under Section 302 IPC and 302/34 IPC and a sentence of imprisonment for life and under Section 323 IPC one year's rigorous imprisonment.
3. The prosecution story in brief is that on 18-5- 981, Moo ya s/o Jawala and Gangadhar s/o Mooiya by caste Mali, residents of Berwara came together, Gangadhar inflicted a blow by Farsi on Balia on (be head on account of which he succumbed to the injuries. A blow wis also inflicted on the hand of Sharubhu by Farsi by which his hand was cut. Lichmari PW. 2 went to police chowki Ramoli but no body was found there 'as such he went to police station Manpur and lodged a first information report (Ex P.1) of the incident. The police registered a case under Sections 302 & 324 IPC and started investigation. After usual investigation the case was challaned ill the court of Munsif-cum-Judicial Magistrate, Bandikui, who thereafter committed the case to the Sessions Court for trial. The autopsy of Balia. was codducted by Dr Kamal Kishore Sharma PW 9, and he found the following injuries on the body of Balia.
(1) Biuise : 16 cm x 1 cm at the left fore arm about 3 cm below the left elbow laterally.
(2) Incised wound : About 15 cm long, 4 cm width, 3 cm depth in left fronto-parietal region of the scalp antero-posteriorly parallel to mid line of the scalp, the anterior end of which is about 5 cm above the left upper eye brow and 6 cm above the upper border of left pinna. There is fracture of the left frontal and narietal bone below the wound. The bones are apart and gaping' The membranes of the brain are torn and the brain matter is exposed and coming out. Magots are present in the wound.
4. The accused persons tenied the charges and claimed to be tried. The prosecution in support of its case, examined 13 witnesses and no evidence was led by the defence. Learned Additional Sessions Judge believed the prosecution case and convicted and sentenced the accused appellant in the manner indicated above.
5. In this case t e prosecution has examined, PW. 1, Mohania PW.3 Kanuri, PW 4 Buddi PW. 5 Gyarsa, PW. 6 Shambu and Kamli as eye-witnesses of the incident. It may be mentioned at the out-set that in FIR, it has been alleged that only Gangadhar accused inflicted Farsi-below on the head of Biha which resulted in his death. Accordina to the story as narrated by Kanuri PW 3, wife of the deceased at about 6 p.m in the evening she was standing near a well Mobaniya, Gyersa, Buddi and Balia were also standing near her Shambhu, her son was also working on the well. It been further stated by Kanuri that they dropped the clay dug well in from of the home of accused appellants Moolia and Gansadhar this, Gangdhar and Moolia came on the spot. Moolia and Kulhari and Gangadhar with a Barchi. The accused appellant started asbusing as dropped in front of their house. At this husband Balia told that it was night time and they would remove the sand in the morning, hence the accused persons again abused and her husband with folded hands asked the accused persons to forgive him At this, Gangadhar inflicted a blow by Brach on the head of Bali., and Moolia also inflicted a blow on her husband. Balia fell on the ground on account of injuries. Mohania and Gyaisa also came on the spot. Gangadhar also inflicted an injury on the left hand of her son Shambhu and Moolia inflicted a blow on the right hand of Shambhu. The accused persons also gave Beating to her while running. Thereafter, her husband was taken to police Chowki but he succumbed to the injuries in the way. There after, Shambhu was seat for treatment to Dausa. Then they went for lodging the leport but no body was found at the police chowki Ramoli, as such report was lodged at the police station Manpura.
6. The other prosecution witnesses have also narrated the same account of story. It may be mentioned at this stage that Moolia accused and deceased Balm are re-I brothers admitted by Mst.Kanudi, PW 3. Mst. Kanudi has admitted m the cross-examination that Gangadnar had inflicted an injury on the head of Balia and so far as Mooha is concerned, he had inflicted an injury on his hands and legs by Kulaari. She also stated that she could not say whether the Kulhari was used from the sharp side or from the back side. From a perusal of injuries, as found by Dr. Kamal Kishore PW 9, the deceased had only one incised wound on the fronto-parietal region of scalp and another injury was a bruise on the fore-arm. In the opinion of doctor the cause of death was due to fracture of skull-bones and damage to the braiti matter. The injury was inflicted by sharp cutting-heavy object.
7. Learned Sessions Judge, under these circumstances has convicted the accused appellant Moolia under Section 30.' read with Section 34 IPC.
8. In our view, according to the facts narrated by the eye-witnesses, there was no pre-concert between Moolia and Gangadhar for causing death of Balia, nor they have stated that at the time of incident Moolia had formed any common intention with Gangadhar to cause the death of Balia. It appears that the incident started all of a sudden, at the spur of the moment when the clay was thrown by the complainant party in front of the house of the accused persons. Moolia is the real brother of deceased Balia and in view of these circumstances, we are not prepared to believe the prosecution case that Moolia had any common intention with Gangadhar to cause the death of Balia.
9. Now, taking the individual act of Moolia, it was alleged by the prosecution witness that he had inflicted one injury on the hand of Shambhu from the back side of axe. Learned Additional Sessions Judge in this regard has convicted him under Section 323 IPC an.1 has given a sentence of six month rigorous imprisonment. He maintained the conviction and sentence of Moolia under Section 323 IPC. Moolia has already remained in jail for more than six months, as such he is no longer required to surrender to bail bonds.
10. Now, taking the case of accused Gangadhar, also, according to the pr Section witnesses the incident started when clay was thrown out side his house. He inflicted only one injury on the head of Balia and in our view the case falls in exception (4) of sec 300 IPC. The act was committed without premeditation, in sudden fight, h the heat of passion upon a sudden quarrel and the accused Gargadhar had not taken undue-advaatage and had not acted in a cruel and junusual manner. The case thus falls under Section 304, part (1) and not under Section IPC.
11. The conviction of Gangadhar is, therefore, set-aside from Section 302 IPC and he is convicted under part (1) of Section 304 IPC. It was the first offence committed by Gangadhar and he was a young boy of 19 years of age and belongs to agriculturist class, as such ends of justice would meet if Gangadhar is sentenced to rigorous imprisonment for seven years for an offence under Section 304(i) IPC and a fine of Rs. 1,000. In default of fine to further under go rigorous imprisonment for a period of one year. The conviction of accused Gangadhar, under Section 324, for inflicting an injury on Shambhu and the sentence of one year's rigorous imprisonment is maintained. However, both the sentences shall run concurrently.
12. In the result the appeals filed by accused appellants are allowed in part and they are convicted and sentenced as indicated above.
13. Moolia is on bail, as such, he need not surrender to the bail bonds.