JUDGMENT 1. - The above four appeals arise out of the judgment dated 31st August, 1982, passed by the learned Addl. Sessions Judge No. 2, Alwar, in Sessions Case No. 13 of 1982. against the judgment dated 31.8 82 passed by Sb. Khem Chand, Addl. Ss. J. No. 2 Alwar in Ss. Case No. 13/1982. 2. Accused Kajod and Matmol have filed D.B Cr. Appeal No. 402/1982, The appeal filed by Kishore bears D.B. Cr. Appeal No. 403/1982. Kishore also preferred a jail appeal which bars D.B. Cr. Appeal (Jail) No. 506/1983. The State has also filed an appeal against Kajod and Matmol in regard to their acquittal under Section 302, IPC. The learned Addl. Sessions Judge by his judgment convicted and sentenced the accused-appellants as under:- (a) Kajod : Under section 325/34. IPC. sentenced to two years RI and a fine of Rs. 3000/-, in default of payment of fine to further undergo three months' RI; under section 323, IPC sentenced to one months RI and a fine of Rs. 100/-, in default of payment of fine to further undergo a sentence of seven days RI. (b) Matmol : Under Sec 325/34, IPC, sentenced to two years R.I. and a fine of Rs. 2000/- in default to further undergo a sentence of three months under Section 452, IPC sentenced to two years' RI; in default of payment of fine to further undergo a sentence of three months RI: Under Section 323, IPC sentenced to to one month's R.I and a fine of Rs. 100/-, in default of payment of fine to further undergo a sentence of seven days RI. (c) Kishore : Under Sec. 302, I.P.C. sentenced to imprisonment for life and a fine of Rs. 2500/-, in default of payment of fine to further undergo a sentence of two months RI; Under Section 452, IPC sent need to two years RI and a fine of Rs. 1000/- in default to further undergo a sentence of three months RI; under Section 323, IPC sentenced to one months RI and a fine of Rs. 100/-, in default to undergo a sentence of seven days RI. All the substantive sentences were ordered to run concurrently. 3. 1000/- in default to further undergo a sentence of three months RI; under Section 323, IPC sentenced to one months RI and a fine of Rs. 100/-, in default to undergo a sentence of seven days RI. All the substantive sentences were ordered to run concurrently. 3. Briefly stated the facts of the case are that a case was registered against the accused appellants on the basis of Ex.P/3, Parcha-bayan, written by Man Mohan and recorded by Omveer Singh (PW7), at 4 p.m on 4th April, 1982 As per Ex. P 3 Parcha-bayan, Man Mohan Singh was residing at his house on 4th April, 1982 at 5 p.m. He heard noise of cutting of woods in a garden. The cutting of woods was being done by Badri and Kailash. On their refusal not to cut the woods, Badri and Kailash were pushed out of the garden by Man Mohan. It is stated that Kishore, Smt. Mangli and Smt. Kalii came there, armed with Lathis. The case of the prosecution further is that Kishore inflicted lathi blows on the head of Kanhaiya Lal and the third lathi blow was inflicted by him at the temporal region, near the eye of Kanhaiya Lal He also inflicted one lathi blow on the of Kanhaiya Lal Matmol gave a lathi blow on the left elbow of Kanhaiyalal. Matmol is also alleged to have given lathi blows on the legs of Man Moham. As regards Kajod it is alleged in the Parcha-bayan that he gave lathi blow on the leg of Mani Ram. Kanhaiyalal was taken to the hospital when he succumbed to his injuries The police initially registered a case under Section; 147, 148, 149, 307 and 452. IPC and. after the death of Kanhaiya Lal the investigation was converted from Section 307, IPC to Section 302, IPC. During the coursed investigation the appellants were arrested on 11th April, 1982. 4. The prosecution examined 9 witnesses in support of its case. Statements of the accused under Section 313, Cr. P.C. were recorded. They denied their complicity in the crime and examined DS/1 in defence. After hearing the learned counsel for the parties, learned Addl. Sessions Judge No. 2, Alwar vide his judgment dated 31st August. 1932, convicted and sentenced the accused appellants as aforesaid. Aggrieved by the conviction and sentence, the accused-appellants have preferred this appeal as stated above. 4 5. Mr. They denied their complicity in the crime and examined DS/1 in defence. After hearing the learned counsel for the parties, learned Addl. Sessions Judge No. 2, Alwar vide his judgment dated 31st August. 1932, convicted and sentenced the accused appellants as aforesaid. Aggrieved by the conviction and sentence, the accused-appellants have preferred this appeal as stated above. 4 5. Mr. M A Khan and Mr. J. P. Goya], learned counsel for the accused-appellants, submitted that the prosecution story is not believable. They submitted that the prosecution has not come out with the true facts with regard to the genesis of the crime. The learned counsel also submitted that the prosecution has shifted the place of occurrence from outside the house to the inside the house in order to aggravate the situation and to make the offence more serious. They also submitted that the prosecution witnesses have made improvements in their evidence at the trial and they have changed their respective statements under Sec. 161. Cr. P. C. on material particulars. The prosecution witnesses had stated during the investigation that Jagdish had caught hold of Badri by neck and pushed away from the garden. Badri, who was a minor boy of 10 years fell down, which started altercation. In their statement under Section 161, Cr. P. C. the prosecution witnesses have stated that Ganesh Lal and certain other persons wanted Jagdish to be taken out of the room and since they were bent upon to beat him, he was not taken out of the room. But this fact has been denied during the trial by all the witnesses who are members of the same family and are interested in prosecuting the accused appellants. It was also submitted by the learned counsel for the of accused appellants that the accused appellants Kajod and Matmol did not cause any grievous injury by blunt weapon to any of the injured persons. Even if the prosecution story is believed that both have caused serious injuries by blunt weapon, the accused-appellants could not have been convicted under Sec. 325/34 IPC. 6. The learned Public Prosecutor submitted that the conviction of the accused appellants is based on proper appreciation of evidence and that the acquittal of accused Kajod and Matmol of the offence under Section 302, IPC is not warranted by the facts and circumstances of the case. 6. The learned Public Prosecutor submitted that the conviction of the accused appellants is based on proper appreciation of evidence and that the acquittal of accused Kajod and Matmol of the offence under Section 302, IPC is not warranted by the facts and circumstances of the case. His submission is that both Kajod and Matmol should be convicted under Sec 302/34, IPC. 7. We have given our thoughtful consideration to the respective sub-missions made by the learned counsel for the accused appellants as well as the submissions made by the learned Public Prosecutor and perused the record of the case. Ex. P/4 is the side-plan prepared by PW 7 Omveer Singh. On 4th April, 1982. he was posted as ASI, police-post, Rajgarh. In the site plan, the place of occurrence has been shown by 'X' mark, which is outside the door of the house. It is, therefore, clear that the incident took place at place 'X' which is definitely outside the place of occurrence. In these circumstances, an offence under Section 452, IPC is not made out against the accused appellants PW/1 Dr. Shiv Shanker examined Kanhaiya Lal on 4th April 1982 at 6 p m. He found the following injuries on the person of Kanhaiya Lal. 1. Bruise with depression 11 x 2 cm vertical on face and scalp 1.5 cm away from mid at 1 cm above the left eye brow, to left fronto-parietal region. 2. Lacarated wound with surrounding swelling 1 x 5 x 8 cm on face 1 cm above the lateral end of left eye brow. 3. Bruise with depression 12x2 cm oblique on scalp at mid-parietal region to left occipital region. 4. Bruise with swelling 12 x 7 cm vertical on lateral aspect of lower ⅓ left upper arm, to upper ⅓ left fore-arm. 5. Lacerated wound 5 x.5x1.5 cm on lateral aspect of left elbow joint in centre of injury No. 4. 6. Bruise with swalling 10x9 cm transverse on upper 1/2 of back in mid- extending upto root of neck." 8. In the opinion of PW/1 Dr. Shiv Shanker, all the injuries were simple in nature and caused by blunt weapon. The injury report is Ex.P/2. PW/9Dr, P.S. Agarwal conducted postmortem on the body of Kanhaiya Lal and found the following external injuries on his person ;- 1. In the opinion of PW/1 Dr. Shiv Shanker, all the injuries were simple in nature and caused by blunt weapon. The injury report is Ex.P/2. PW/9Dr, P.S. Agarwal conducted postmortem on the body of Kanhaiya Lal and found the following external injuries on his person ;- 1. Bruise 11 x2 cm on fore-head and scalp 1.5 on left to mid-line in sagittal plain with swelling around and black eye lids of left eye with bleeding mark from mouth and nostrils. 2. Lacerated wound l x l/2 cm x muscle deep just above left eye brow with blood clot. 3. Bruise 12x2 cm on left parietal region posterior part left side of occipital region with swelling around and bleeding mark from left ear present. 4. Bruise 10x7 cm area on back upper part transverse. 5. Bruise 12x31/2 on left arm lower part, elbow and upper part of forearm posterio-laterally with swelling. 6. Lacerated wound 3/4 x 1/2 cm x muscle deep on left elbow posterio -: laterally. 9. On opening the body, he found the following internal injuries:- 1. Sub-scalp big blood clot under external injury No. 1 and 3 and subcutaneous blood clot on fore-head under external injury No. 2. 2. Fracture of skull-(a) fracture left frontal bone under-external injury No. 2-4 cm x linear; (b) fracture of left side frontal bone upto Parietal and temporal bone with depressed fractured fragment which Lacerated the meninges and brain matter with blood clots around under external injury No. 1 (c) fracture of posterior part of left parietal bone 6 cm x linear upto occipital bone with sub-skull thick blood clot pressing over the brain under external injury No. 3. 3. Sub-cutaneous and muscular blood clots under external injuries Nos 4, 5 and 6. 10. In the opinion, of the Doctor, the death occurred due to head injury with fractures of skull and laceration and compression of brain associated with hemorrhage and shock. He also stated that all the injuries were ante-mortem in nature and were caused by blunt object.Dr. P. S. Agrawal (PW/9) also examined Mani Ram and found the following injuries on his person:- 1. Abrasion 2x 1/2 cm on right leg anteriorly middle part. 2. Abrasion 11/2 x 1 cm on right elbow posteriorly. 3. Bruise 7x2 cm on right glutaeal region with tenderness and swelling. PW/1 Dr. P. S. Agrawal (PW/9) also examined Mani Ram and found the following injuries on his person:- 1. Abrasion 2x 1/2 cm on right leg anteriorly middle part. 2. Abrasion 11/2 x 1 cm on right elbow posteriorly. 3. Bruise 7x2 cm on right glutaeal region with tenderness and swelling. PW/1 Dr. Shiv Shankar examined Man Mohan and found the following injuries on his person:- 1. Braise 4 x 5 cm transverse on back at 7 & 8 area from mid line to right side. 2. Lacerated wound 8 x 3 x 5 cm on front of left big toe at the interfarsal joint. 3. Lacerated wound 1 x .5 x .5 cm on front of right big toe at interfarsal joint. 4. Complained of pain at right renal area of abdomen-on mark of injury. 11. All the injuries were found to be simple in nature, and caused by blunt weapon. The injury report of Man Mohan is Ex. P/2. 12. Dr. Shiv Shankar (PW/1) also examined the injuries of Badri and found the following injuries on his person:- 1. Bruise 2 x 1 cm transverse on right side of trachae 1 cm below mandible. 2. Bruise 1.75 x 1 cm just parallel and below injury No. I. 3. Bruise 2.2 x 1.2 cm just below and parallel to injury No. 3. 4. Bruise 2x 1 cm transferase on left side of trachae just opposite to injury No. 1 5. Bruise 2 x 1.2 cm just below and parallel to injury No. 4. 6. Bruise 2.5 x 1 cm just below and parallel to injury No. 5. 13. In the opinion of the Doctor, all the injuries were simple in nature, caused by blunt weapon. Injury report Ex. D/3 was prepared by him. 14. PW/2 Man Mohan has stated that he heard the noise of cutting of woods while he was inside the house in the evening of 4th April, 1982, at 5 p. m. In the chowk of the house, his father Kanhaiya Lal & his grandfather Mani Ram were there. On his advice, he went inside the garden. He found Badri and Kailash who were cutting woods. He asked them not to do so and pushed Kailash out of the garden. After five to seven minutes of the accident, Kishore, Kajod, Matmol. Mangali, Kalli and Nathi came there armed with lathis in their hands. On his advice, he went inside the garden. He found Badri and Kailash who were cutting woods. He asked them not to do so and pushed Kailash out of the garden. After five to seven minutes of the accident, Kishore, Kajod, Matmol. Mangali, Kalli and Nathi came there armed with lathis in their hands. They made a declaration that they would kill Kanhaiya Lal. PW/2 Man Mohan further deposed that these persons entered the house by striking and opening the door and Kishore inflicted two lathi blows on the head of Kanhaiya Lal & one on the left temporal region. The third lathi blow lended on the back of Kanhaiya Lal. When Kanhaiya Lal fell down, Matmol also inflicted a lathi blow on the left below of Kanhaiya Lal Kajod inflicted lathi blows on Mani Ram's right leg and not on other parts of the body This witness further stated that Pooran and Babu also reached the scane of occurrence. PW/3 Smt Naraini, PW/4 Mani Ram and PW/6 Babu Lal reached latter. They have also stated that all the accused-appellant, Smt. Kalli, Nathi, and Mangali came to the house of Kanhaiya Lal with the intention of killing Kanhaiya Lal. His statement is almost of the same nature as the statement of PW/2 Man Mohan PW/5 Pooran Chand was declared hostile. PW/7 Omveer Singh, and PW/8 Ram Swaroop are the investigating officers. DW/1 Badri Prasad deposed that on 4th April, 1982, in the evening at 5 p. m. when he was passing by the side of the garden of Kanhaiya Lal, in front of Mani Ram's house Man Mohan caught hold of him and levelled charges against him for cutting woods Thereafter Jagdish came. He belaboured him and caught hold of his seek, Man Mohan dragged him by pulling his legs. Jagdish pressed his throat with his hand and consequently, he became unconscious. This story given by the defence is corroborated by the statement given by the prosecution witnesses under Section 161, Cr. P. C. It is, thus, true that the prosecution has not come out with true facts and suppressed the genesis of the crime. It seems to be probable that the accused party came over there after the incident had taken place with Jagdish and, there in the heat of passion and spur of moment the occurrence had taken place. P. C. It is, thus, true that the prosecution has not come out with true facts and suppressed the genesis of the crime. It seems to be probable that the accused party came over there after the incident had taken place with Jagdish and, there in the heat of passion and spur of moment the occurrence had taken place. Accused Kajod and Matmol have caused simple injuries by blunt weapon. In these circumstances, the conviction of the accused-appellants, Kajod and Matmol, under Sec. 325/34, IPC is not maintainable. At the most, they have committed an offence under Sec. 323/34, IPC. 15. As regards Kishore. in the facts and circumstances of the case, it cannot be said that he committed an offence under Section 302, IPC. Badri Prasad who was throttled and became unconscious, was 10 years of age only and he was saved by grace of God It might be a sudden provocation of Kishore for causing injury to Kanhaiyalal. In such circumstances, the act of the accused appellant. Kishore comes within Exception IV to Section 300, IPC. Badri was the real nephew of Kishore. It was a case of sudden provocation; it was not a case of pre-designed-plan. There was no intention on the part of the appellant, Kishore to cause the murder of Kanhaiya Lal Kishore inflicted only lathi-blows on the person of Kanhaiya Lal. In the circumstances, we are of the opinion that the offence made out against Kishore is not covered by any of the four clauses of Section 300, IPC. The only offence which can be said to have been made out is under Sec. 304-11. IPC. There was no bad-blood between the deceased and the accused appellant Kishore. We are unable to hold that the appellant did the Act with the intention of causing that particular injury which resulted in the death of the deceased. We, therefore, hold that the accused was wrongly convicted under Section 304 11, IPC. Kishore was arrested on 11th April, 1982. He has, thus remained in custody for about 41/2 years. Kajod and Matmol were also arrested on 11th April, 1982. After their conviction they were arrested and were released on bail by the order of this Court on 15th September, 1982. 16. In the result, accused-appellant Kishore's appeal is partly accepted. Kishore was arrested on 11th April, 1982. He has, thus remained in custody for about 41/2 years. Kajod and Matmol were also arrested on 11th April, 1982. After their conviction they were arrested and were released on bail by the order of this Court on 15th September, 1982. 16. In the result, accused-appellant Kishore's appeal is partly accepted. His conviction and sentence under Section 302, IPC are set aside; instead he is convicted under Sec. 304-11, IPC and sentenced for the period already undergone by him. His conviction under Section 352, IPC is set aside. His conviction under Section 323, IPC is maintained. As accused-appellant Kishore has already served out the sentence, he be set at liberty if not required in any other Case. 17. The appeal of Kajod and Matmol is partly accepted. Their conviction under Sec. 325/34, IPC is set aside. The conviction of Matmol under Section 352, IPC is also set aside. Both the accused-appellants, Kajod and Matmol, are convicted under Section 323, IPC and sentenced for the period already undergone by them. 18. The appeal filed by the State is dismissed. 19. The appeals shall stand disposed of accordingly.Appeal Partly allowed/Appeal dismissed. *******