Sangeet Lodha, J.
1. This appeal is directed against the judgment dated 8.7.2002 passed by the learned Additional Sessions Judge No. 5, Kota whereby the appellants were convicted and sentenced as under:
Under Section 302 IPC
To suffer imprisonment for life with a fine of Rs. 1000/- and in default of payment of fine to further suffer three months simple imprisonment.Under Section 148 IPC
To suffer simple imprisonment for six months with fine of Rs. 500/- and in default of payment of fine to further suffer one month simple imprisonment.Under Section 323 IPC
To suffer simple imprisonment for six months with fine of Rs. 500/- and in default of payment of fine to further suffer one month simple imprisonment.Under Section 341 IPC
To suffer simple imprisonment for three months.The sentences were directed to run concurrently.
Ramdayal, Brahmani Lal, Ghanshyam and Parmanand were convicted under Sections 148, 323/149 and 341 IPC. However, they were not sentenced to suffer imprisonment immediately while giving benefit under Section 4 of Probation of Offenders Act and they were ordered to be released on probation on their furnishing the security of Rs. 5,000/- and the bond of the like amount on the following conditions:
(i) The accused persons shall not indulge themselves in the repetition of such offences and shall maintain the peace and good conduct.
(ii) Shall remain present to suffer imprisonment when summoned by the Court.
2. At the outset, an objection has been raised by the counsel appearing on behalf of the appellant Ganraj that since the appellant Ganraj is absconding, therefore, in his absence, the appeal cannot be heard by this Court. We do not find any merit in the objection raised by the learned Counsel inasmuch as the question as to whether the appeal preferred by the convict, who subsequently absconded from the custody, can be heard, by the Court on merit, already stands settled by the decisions of the Hon'ble Apex Court and so also by this Court. The reference in this regard may be made to the decisions of Hon'ble Supreme Court in Shyam Deo Pandey v. State of Bihar : 1971CriLJ1177 , Ram Naresh Yadav v. State of Bihar AIR 1987 SC 1500, Bani Singh v. State of U.P. : 1996CriLJ3491 and the decision of this Court in the matter of Jitendra Kumar @ Bittu and Ors. v. State of Rajasthan and Ors. 2007(1) RCC 408, wherein it has been specifically held that even in absence of the accused appeal can be disposed of on merits, after hearing the appellant or his counsel or after appointing another counsel at the State cost to argue the case on behalf of the accused. Accordingly, the objection raised on behalf of the appellant is over-ruled and we proceed to hear the appeal on merits.
3. It is the prosecution case that on 20.1.1997 at 6:50 P.M. Shri Kalu Lal- injured informant lodged an oral report at the Police Station Sangod and alleged that he had gone to Rajgarh to fetch fertilizer on a bullock cart. The information accompanied by his father Kishan Lal, Suraj Mal, Jawahari Lal and Latoor Mali was coming back to village Mandeeta on the bullock cart. When they reached from the side of Rajgarh village, near the school, Ram Dayal, Brahmani Lal, Ganraj, Ghanshyam and Parma Nand came from the opposite direction equipped with gandasi and lathies. They obstructed the way of the bullock cart and immediately started beating. It was further alleged that Ganraj inflicted one blow on the heard of the informant by gandasi and another blow on the right cheek and neck by a broken bottle. It was alleged that Brahmani Lal gave a blow on his right leg by Dhansia and thereafter all the five persons started beating his father. It was further alleged in the report that informant Kalu under fear came to the village as pillion driver, on a motor-cycle driven by one Mali.
4. On the basis of the above-mentioned report, a case was registered against the accused persons in Police Station Sangod, vide FIR No. 18/1997 under Sections 147, 148, 149, 307, 341 and 323 of Indian Penal Code (hereinafter referred to as 'the IPC).
5. After registering the case, the investigation commenced. During the investigation, on 21.1.1997 injured Kishan Lal succumbed to the injuries in M.B.S. Hospital, Kota. After inquest proceedings, the body of the deceased was taken for autopsy. After the death of deceased Kishan Lal offence under Section 302 was also added. The injuries of Kalu Lal were got examined by medical jurist Dr. Rakesh Kumar, the statements of witnesses were recorded and appellants were arrested. At the instance of Ganraj one Gandasi and at the instance of Ramdayal one Dhasiya was recovered. At the instance of Parmanand and Ghanshyam lathies were recovered. The weapons and cloths so recovered were sent for chemical examination. On completion of investigation, a charge-sheet under Sections 148,149,341, 323, 307 and 302 of IPC was filed against the accused persons before the Judicial Magistrate, Sangod. On 12.3.1997, the matter was committed to the Sessions and thereafter the case came up for trial before the Additional Sessions Judge No. 3; Kota and the charges were framed under Sections 147,148, 341, 323, 307/149 and 302/142 IPC against the appellants, who denied the charges and claimed trial. The case was later transferred for the trial to the Additional Sessions Judge No. 5, Kota.
6. The prosecution in support of its case produced as many as 27 witnesses. The statements of accused persons were recorded under Section 313 and they denied their involvement in the crime and stated that the prosecution case is false. Besides, Kesrilal and Ramdayal were examined as witnesses, in defence. The learned trial Court after considering the evidence available on record hearing the final submission convicted and sentenced the appellants as indicated hereinabove.
7. We have heard the learned Counsel for the appellants and learned public prosecutor and also examined the material available on record in its entirety and objectivity.
8. It is contended on behalf of the learned Counsel for the appellant Ganraj that there is apparent contradiction in the statements of the prosecution witnesses, who are said to be eye- witnesses of the incident viz., Kalu (PW. 23), Latoor (PW. 18), Jawahari Lal (PW. 25) and Surajmal (PW. 26). Besides their statements suffer from self-contradiction. It is contended by the learned Counsel for the appellants that even if the evidence on record is taken as it is, the conviction of the appellant Ganraj under Section 302 IPC is not sustainable. In the alternative, it is argued by the counsel that the incident took place all of a sudden, there was no pre-mediation and the injury sustained by deceased Kishan Lal was not of such a grave nature, which is sufficient in ordinary course of nature to cause death. It was contended that there was no intention to cause the death or to inflict an injury likely to cause death, therefore, at the most the offence said to be committed by the accused Ganraj is covered under Section 304 Part II of IPC and not under Section 302 of IPC.
9. The learned Counsel for the appellants further contends that there is no evidence on record indicating that involvement of the accused persons for the commission of the offence under Sections 148, 323 and 341 of IPC, therefore, the conviction of the accused persons recorded by the learned trial Court under the aforesaid sections deserves to be set aside.
10. Learned Public Prosecutor appearing on behalf of the State on the other hand submitted that the recovery of the weapons at the instance of the accused persons establishes the guilt of the accused Ganraj beyond reasonable doubt and no exception can be taken to the reasons indicated by the learned trial Court in the well reasoned judgment. The learned Public Prosecutor contended that the evidence on record has been examined by the learned trial Court threadbare and no interference is called for by this Court with the conviction of the accused and sentence awarded by the learned trial Court.
11. The injuries sustained by Shri Kishan Lal were examined by Dr. G.S. Vishnar, medical jurist (PW. 2), when he was admitted to the M.B.S. Hospital, Kota. As per injury report (Ex. P./l), following injuries were found on the body of deceased Kishan Lal.
Lacerated wound 1-1/4' x 1/2' x BD TR LT parietal Scalp anteriorly.
12. The injury was stated to be caused by blunt weapon, however, no opinion was expressed by medical jurist as to whether the injury suffered was simple or grievous and the matter was referred for X-Ray. In a statement of Dr. G.S. Vishnar (PW. 2) has confirmed the details of the injury incorporated in the injury report, however, he has stated that since it was not possible to give opinion regarding the nature of the injury, therefore, X-Ray was advised but since the X-Ray was not found technically sound, therefore, the second X-Ray was advised.
13. As per the post-mortem report (Ex. P. 36), the cause of death was set out is as under:
Coma as a result of extra dural and Sub dural and Sub arachnoid and' intra cerebral hemorrhage followings head injury.
Thus, it can safely be concluded that the death of Kishan Lal was homicidal in nature.
14. There is no discrepancies or contradiction in the statements of the eye-witnesses that there was a quarrel between Brahmani Lal, Ram Dayal, Parma Nand and Ghan Shyam on the one side and Kishan Lal and Kalu Lal on the other at a liquor shop and thereafter Kishan Lal alongwith other persons left the place in a bullock cart. All the witnesses have deposed that the way of the bullock cart was obstructed by the accused persons, inter alia, Ganraj. Of course there is some discrepancy with regard to the weapon used for injury inflicted on the body of the deceased Kishan Lal. Regarding the injury inflicted by Ganraj on the body of Shri Kishan Lal deceased, Kalu Lal (PW. 23), in his examination in chief, stated as under:
esjs firkth dks xkM+h ls xujkt us iVdk] xujkt us muds flj ij x.M+klh dh ekjh A
However, in his cross-examination, he has stated as under:
xujkt us esjs firkth ds x.Mklh dh flj es ekjh tks muds xaMklh dh mYVh rjQ ls yxh A xujkt us ,d gh pksV ekjh Fkh A
Chittar (PW. 19) in his cross-examination has stated that firstly the accused persons assaulted Kalu and thereafter they started beating Kishan Lal, however, in cross examination, he stated as under:
bZ ls ,Q Hkkx es ;s rks lgh gS fd xujkt us dkyw ds flj es czge.k'khy us dkyw ds iSj o jken;ky us mlds gkFk ij ekjh ijUrq ;s /;ku ugh gS fd xaM+klh] /kkfj, vFkok ykBh ls ekjh A th ls ,p Hkkx es ;s /;ku ugh gS fd xujkt us xaMklh dh fd'kuyky ds flj es /kkfj, dh ekjus okyh ckr ;kn ugh gS A flj es rks ekjk Fkk ijUrq /kkfj, ls ekjk ;k fdlh vU; gfFk;kj ls ;s ;kn ugh gS A
Regarding the injury inflicted by Ganraj on the body of Kishan Lal, Jawharilal (PW. 25) stated as under:
xujkt us fd'kuiky ds xaM+klh dh ekFks es ekjh A
15. Thus, from the statements of eye-witnesses, it is apparent that there is no discrepancies in their statements so far as injury inflicted by Ganraj on the body of the deceased Kishan Lal is concerned, all the witnesses have categorically stated that Ganraj inflicted the blow on the head of Kishan Lal. Kalu (PW. 23) and Jawahari Lal (PW. 25) has categorically stated that Ganraj had given a blow on the body of Kishan Lal by 'Gandasi'. Admittedly, Gandasi has been recovered at the instance of accused Ganraj, therefore, there is no reason to disbelieve the testimony of Kalu and Jawahari, who have categorically stated that the injury on the head of Kishan Lal was inflicted by Ganraj by Gandasi.
16. It is apparent to mention here that as per the injury report, on the body of the deceased Kishan Lal, a single head injury was found, which is opined to be inflicted by a blunt weapon. Therefore, there is reason to believe that the injury was inflicted by Ganraj on the head of deceased Kishan Lal by blunt side of the Gandasi, which is proved to be fatal.
17. Therefore, suffice it to say that there is consistency in the statements of eye-witnesses with regard to role played by the accused Ganraj in the crime. On the basis of post-mortem report, it is apparent that the death of Kishan Lal has been caused on account of the single head injury sustained by him, therefore, it can be safely concluded that the death of Kishan Lal was homicidal in nature and he has died on account of the injury inflicted by Ganraj.
18. In order to appreciate the alternative submission of the learned Counsel to the effect that on the basis of evidence available on record the charge under Section 302 of I.P.C. is not proved against the appellant Ganraj and he should be convicted under Section 304 Part II of IPC, it will be appropriate to consider the essential requisites to invoke Exception (4) of Section 300 IPC. The Exception (4) of Section 300 IPC can be invoked, if and only if, the following requirements are satisfied:
(i) it was a sudden fight;
(ii) there was no pre-meditation;
(iii) the act was done in the heat of passion; and
(iv) the assailant had not taken any undue advantage or acted in a cruel manner.
19. In Hari Ram v. State of Haryana : 1983CriLJ346 and Krishna Tiwari v. State of Bihar : 2001CriLJ3277 , Hon'ble Supreme Court indicated that where the accused, who after getting provoked came with sharp edged weapon and got the same thrusted on the chest of the deceased, was not guilty under Section 302 but liable to be convicted under Section 304 IPC.
20. In our opinion, in the instant case, all the ingredients of Exception 4 to Section 300 IPC are found present. There was a sudden quarrel between the accused persons with the deceased Kishan Lal and injured Kalu Lal at the liquor shop and it appears that as a result of quarrel in the heat, the accused obstructed the way of the deceased and Ors. who were going in the bullock cart and inflicted the injuries. On examination of the evidence on record in entirety, it appears that the act of the appellant was sudden and without pre-meditation. There is no evidence to suggest that the appellant has taken any undue advantage of the situation. More-ever, by a single blow of appellant Ganraj on the body of Kishan Lal that too from the blunt side of the weapon has resulted in his death. In our opinion, the injuries sustained was not of such a higher degree, which could be said to be an injury in all probabilities sufficient to cause death. Therefore, it cannot be said that he acted in cruel manner. Thus, taking an overall view of the situation, it is not possible to hold the accused Ganraj guilty of committing an offence under Section 302 IPC, however, he is apparently guilty of committing an offence of culpable homicide not amounting to murder, punishable under Section 304 Part I of IPC.
21. We do not find any evidence on record to prove beyond reasonable doubt, the involvement of the accused Ganraj for commission of the offence punishable under Section 148, 323/149 and 341 of IPC. Therefore, he is entitled to be acquitted from the charges under Section 148, 323 and 341 IPC.
22. It is stated by the counsel appearing on behalf of Ram Dayal, Brahmni Lal and Parmanand that since these accused persons were given the benefit of Section 4 of Probation of Offenders Act, inter alia, on the condition that they shall not indulge themselves in the repetition of such offences and shall maintain peace and good conduct in the period of three years stipulated has already expired, therefore, their appeal may be dismissed, as having become infructuous.
23. For the reasons aforementioned, we partly allow the appeal of the appellant Ganraj and instead of Section 302, we convict the appellant Ganraj under Section 304 Part I of IPC and sentence him to suffer rigorous imprisonment for 10 years and a fine of Rs. 5,000/-, in default of payment of fine to further suffer 6 months rigorous imprisonment. We, however, acquit him of the charges levelled against him under Sections 148, 323 and 341 of IPC.
24. Since, the appellants Ram Dayal, Brahmani Lal and Parma Nand were released on probation and they were directed to maintain peace and good conduct for a period of 3 years and since the period has already expired, their appeal has become infructuous. The impugned judgment of the learned trial Court stands modified as indicated above.