Govind Mathur, J.
1. By judgment impugned dated 6.9.2003, learned Additional Sessions Judge (Fast Track), Jodhpur convicted the accused appellants and sentenced them in following terms:
Accused Pappu Ram:
Under Sections 302, 323/34 IPC - imprisonment for life term with a fine of Rs. 200/- and in default of payment of fine further to undergo one month's rigorous imprisonment.
Under Section 4/25 Arms Act - one year's rigorous imprisonment with a fine of Rs. 100/- and in default of payment of fine further to undergo fifteen days rigorous imprisonment.
Accused Madanlal, Smt. Bhanwari and Dilip:
Under Sections 302/34, 323/34 IPC - imprisonment for life term with a fine of Rs. 200/- each and in default of payment of fine further to undergo one month's rigorous imprisonment.
Under Section 323/34 IPC - six months' rigorous imprisonment with a fine of Rs. 100/- and in default of payment of fine further to undergo fifteen days rigorous imprisonment.
2. Briefly stated, facts of the case are that on 12.1.2003, PW-6 Raju submitted a written report at Police Station Soorsagar with insertion that on 11.1.2003 his relative Madanlal came to his house and stayed there for a night. Wife of aforesaid Madanlal Smt. Bhanwari then came to the residence of the complainant and started quarreling with Madanlal questioning his stay at the house of Maithi (mother of PW-6 Raju). After some time Madanlal and Bhanwari left for their home. One Sagarnath Jogi at that time was present and with him Smt. Maithi proceeded for Pratap Nagar. While waiting for a city bus, Madanlal, Bhanwari and their sons Pappu and Dilip came from the side of 'Dogs Rescue Ward' and started quarreling with Maithi, during which accused Pappu gave 'gupti' blow to Smt. Maithi. Madan, Bhanwari and Dilip gave some punches and slaps. Looking to quarrel taken place, certain neighbours Shankarji, Bhanwari, Gopal etc. came to the spot and tried to take care of Smt. Maithi who suffered with a 'gupti' injury. Smt. Maithi then was taken to her home where she died.
3. On basis of the information aforesaid a case was lodged and investigation was initiated for commission of the offences punishable under Sections 302 and 324/34 IPC. On 3.5.2003 a charge sheet was filed against Pappu Ram with the charges relating to commission of offences punishable under Sections 302, 323/34 IPC and 4/25 Arms Act. Other accused viz. Madanlal, Bhanwari Devi and Dilip were charged for commission of offences punishable under Sections 302/34, 323 or 323/34 IPC. On denial of the charges, regular trial was conducted.
4. During the course of trial testimony of 18 witnesses was examined by the trial court, out of whom PW-5 Gopal, PW-6 Raju and PW-17 Sagarnath were cited as eye witnesses.
5. PW-16 Ramchandra appeared in witness box being Investigating Officer. This witness narrated all the steps taken during the course of investigation.
6. PW-18 Dr. B.C.Temani conducted autopsy on the body of deceased Maithi, thus, he proved the postmortem report Ex.P/29. As per postmortem report Ex.P/29 the cause of death of Smt. Maithi was shock and haemorrhage due to injury to abdomen. The person of Smt. Maithi was having following injuries:
1. Swelling on right frontal with oncut sule - scalp haematoma.
2. Stale wound 11/2 x 1/2 cm x cavity deep on right Iilac tossa.
3. Incised wound 11/2 x 1/2 cm x skin muscle deep on right hand.
4. Incised wound 11/2 x 1/4 cm skin muscle deep proximal phalanyx Ant right hand middle finger.
5. Abrasion 1 cm x 1/4 cm x 1/2 x 1/2 cm right forearm Ant m/3.
6. Incised wound 11/2 x 1/4 cm x skin muscle deep left hand index finger oblique middle phalanyx and 1 cm x 1/11 cm muscle deep left hand middle finger middle phalanyx.
7. Incised wound 11/2 x 1/2 cm skin deep left hand palm.
8. Abrasion 41/2 cm x 1/4 cm left thigh Antlat m/3.
9. Abrasion 1 x 1/2 cm left let u/3 below knee Ant.
10. Abrasion 1 x 1/4 cm left mandibular ramus lat prt all are antemortem in nature.
7. The prosecution also substantiated its case by producing 31 documents (Ex.P/1 to Ex.P/31) and three articles (A/1 to A/3).
8. The accused persons were also examined as per provisions of Section 313 Cr.P.C. to explain the adverse circumstances available in the evidence adduced by the prosecution. All the accused persons pleaded innocence and stated that whatever material against them available in prosecution evidence is false.
9. Learned trial court after considering the evidence available on record convicted and sentenced the accused persons.
10. In appeal, the only argument advanced by learned Counsel for the appellants is that no case for commission of an offence under Section 302 or Section 302/34 IPC is made out against the accused persons and at the most act of accused Pappu Ram may fall within the purview of the offence punishable under Section 304 part-I IPC being falling under exception-IV of Section 300 IPC.
11. On the other hand, learned Public Prosecutor supported the conviction and sentence straneously with contention that Pappu came to the spot of occurrence with a deadly weapon and gave a grievous bodily injury to Smt. Maithi consequent to which she died. The intention of causing murder as per learned Public Prosecutor is apparent in carrying a deadly weapon itself. It is also urged that the crime in question was not an out come of some spontaneous event or heat of moment, but was a preplanned attack.
12. We have considered the arguments advanced and also examined the evidence available.
13. PW-5 Gopal is an independent person, and as per this witness, when he reached at the spot, Pappu Ram was giving a 'gupti' blow to Raju. Other accused persons Bhanwari, Madan and Dilip were beating Raju with stones in their hands. Maithi was lying down in injured condition. As per this witness, Pappu gave a 'gupti' blow to Maithi consequent to which she fell down. This witness also proves presence of Sagarnath with Maithi by saying that one person belonging to Jogi caste was also present with Maithi and Raju. The happening was informed to the police telephonically by this witness.
14. PW-6 Raju is an injured witness and is son of deceased Maithi. As per this witness, Madanlal stayed at his residence on 11.1.2003 and in next morning Bhanwari came there and quarreled with Madanlal. Bhanwari was objecting stay of Madanlal at the residence of Smt. Maithi. As per PW-6, Bhanwari, Madan, Pappu and Dilip came to the spot of occurrence, Madanlal shouted 'MAARO-MAARO' and then Pappu Ram brought out a 'gupti' wherefrom a blow was given on the abdomen of Smt. Maithi. Accused Bhanwari, Madanlal and Dilip gave certain blows to Raju and deceased Maithi by stones available in their hands.
15. PW-17 Sagarnath also supported the prosecution case with specific statement that when he was standing near Ramdeo Petrol Pump with Raju and Maithi, accused persons came and started quarreling with Maithi and Raju. During the course of quarrel, Pappu brought out a 'gupti' and gave a blow of that in abdomen of deceased. As per this witness, other accused persons gave blows by stones, available in their hands.
16. In view of the statements of the eye witnesses coupled with the recovery of 'gupti' matching of blood stains, we are having no doubt that Smt. Maithi died as a consequent to 'gupti' blow given by accused Pappu. However, in totality of the facts available on record, we find no intention on part of accused Pappu to kill Smt. Maithi.
17. True it is, that at first instance some quarrel took place at the residence of Maithi, the deceased, and then accused Bhanwari and Madan left the place. After some time abovenamed two persons alongwith their two sons Pappu and Dilip returned and indulged in quarreling with deceased and her son. The occurrence of events indicates that the first quarrel and second quarrel happened with a very short break and within the period in which the tension mounted could have not been discharged. The accused persons after reaching the spot first started quarrel with hands and stones and during the course of it a 'gupti' blow was given by Pappu Ram. The weapon of offence i.e. 'gupti' is certainly a deadly weapon and, therefore, accused Pappu Ram must be knowing the consequence of giving a bodily injury by such weapon. However, there is nothing on record to establish that any undue advantage would have been taken by accused Pappu by repeating the 'gupti' blows. As per medical evidence also though three incised wounds were available on the body of deceased but it was only the injury given at abdomen was responsible for causing death. As per PW-6 Raju, the blows from 'gupti' were given horizontally and that was not penetrated except once.
18. In view of the evidence aforesaid, we are of the view that so far as accused Pappu Ram is concerned, he has certainly given a bodily injury which caused death of Smt. Maithi and he was also having knowledge that such bodily injury was eminently dangerous and in all probability may cause death, however, the intention to do so is conspicuously absent. In such circumstances the offence of accused Pappu Ram comes within the purview of the offence prescribed under Section 304 part-I IPC.
19. So far as other accused persons are concerned, the total evidence against them is giving blows by stones carried in their hands. The injuries available on the body of deceased and injured Raju by these persons are also simple. No evidence is available on record to establish that these accused persons were knowing anything about availability of 'gupti' with Pappu Ram and also that they in any manner provoked Pappu Ram to give 'gupti' injury to Smt. Maithi. There is no evidence available on record to establish any common intention of accused Bhanwari, Madan and Dilip with accused Pappu Ram for causing death of Smt. Maithi. The common intention what appears on basis of available evidence is only regarding making quarrel with deceased and her son Raju and for that these accused persons have already sentenced for commission of offence under Section 323/34 IPC.
20. In view of the discussions aforesaid, this appeal deserves acceptance in part. Accordingly the judgment and order dated 6.9.2003 passed by learned Additional Sessions Judge (Fast Track), Jodhpur in Sessions Case No. 77/2003 is modified. The conviction of accused Pappu Ram for the offence punishable under Section 302 IPC is set aside and the same is substituted by the conviction for offence punishable under Section 304 part-I IPC. The conviction and sentence of this accused for the offences punishable under Sections 323/34 IPC and 4/25 Arms Act are maintained. The sentence of accused Pappu Ram for life term with fine of Rs. 200/- is set aside and the same is substituted by rigorous imprisonment for a term of nine years with a fine of Rs. 1000/- and further to undergo one month's rigorous imprisonment in default of payment of the fine imposed.
21. The conviction of accused Bhanwari, Madanlal and Dilip for the offence punishable under Section 302/34 IPC is set aside. Accordingly, the sentence of imprisonment for life term with a fine of Rs. 200/- each too is set aside. Conviction of these accused persons for the offences punishable under Section 323/34 IPC is maintained and their sentence is modified for the term of imprisonment already undergone by them. The accused, except Pappu Ram are already availing suspension of sentence, thus, the bail bonds and sureties furnished by them stand discharged.