JUDGMENT 1. - This appeal is directed against the judgment of conviction and order of sentence dated 26.2.1999 passed in Sessions Case No. 64/97, convicting the accused-appellant under section 302, IPC and sentencing to life imprisonment along with fine of 1,000/-, in default of payment whereof to further undergo 3 months' simple imprisonment. 2. The charges against the accused-appellant are that in the intervening night of 29/30.8.1997, in the temple of Bhimeshwar Mahadev situated near Bhinmal township, he committed murder of Kishan Nath Sadhu. Upon pleading not guilty and claiming trial, prosecution examined 10 witnesses and exhibited 18 documents in support thereof. In the statements under section 313, Cr.P.C., accused has denied all the averments incriminating him and specifically pleaded that Kishan Nath was killed by Suresh Kumar along with 2-3 other persons and he has been impleaded false. No evidence in defence was produced. Thereafter, the learned trial Court, after thread bare discussion of the evidence, convicted and sentenced him as aforestated. 3. Learned amicus curiae took us through the evidence available on the file and submitted that there is no eye-witness to the occurrence and conviction has been based on circumstantial evidence. Neither both the circumstances have been proved nor chain of circumstances are such which will implicate the accused in the offence beyond reasonable doubt. On the contrary, learned Public Prosecutor has supported the impugned judgment. 4. We have carefully considered the rival contentions. The homicidal death of Kishan Nath though not disputed by the accused-appellant yet has been proved by PW 4 Dr. Kailash Kumar Goswami, who conducted autopsy on the dead body and found following ante-mortem 17 injuries on the person of deceased and prepared post-mortem report Ex.P/10 & opinion Ex.P/11 : 1. Abrasion - 2" x 3" on left leg on anterior side; 2. Abrasion - 2" x 2" on right thigh on anterior side; 3. Abrasion - 2" x 3" on right knee on anterior side; 4. Abrasion - 1" x 1", 2 in number, on anterior aspect of right leg; 5. Lacerated wound - 1" x 1" on 3rd interdigital space on left foot, bleeding from wound is present; 6. Swelling - 4" x 3" on dorsum of left hand; 7. Lot of abrasions of different shapes & size on the whole of back and buttocks; 8. Abrasion - 2" x 3" on right forearm; 9. Lacerated wound - 1" x 1" on 3rd interdigital space on left foot, bleeding from wound is present; 6. Swelling - 4" x 3" on dorsum of left hand; 7. Lot of abrasions of different shapes & size on the whole of back and buttocks; 8. Abrasion - 2" x 3" on right forearm; 9. Abrasion & swelling 3" x 3" on outer aspect of right arm; 10. Contusion 5" x 2" on back of right thigh on middle; 11. Lacerated wound 5" x 1" x bone-deep on right side of forehead, bleeding from wound present; 12. Incised wound 2" x 1" x 1/2" deep on right skull in frontal region, bleeding from wound present; 13. Lacerated wound 3" x 1" x 1/2" deep on right parietal region, bleeding from wound present; 14. Incised wound 2" x 1" x 1/2" on mastocil region of head on left side, bleeding present; 15. Incised wound 3" x 1/4" on right external ear so pinna cut; 16. Incised wound 5" x 1/4" on left external ear so cartilagenous part ear separated from bony part and haging down, bleeding present 17. Abrasion 2" x 2" on anterior part of chest. 5. According to Doctor, death was caused from head injuries. Not much cross-examination was made on this witness and the solitary suggestion was that if he falls from hill-rock and tumbles down, can such injuries be sustained. Above suggestion was denied by the Doctor because from a single fall, injuries so noticed can not be caused. Therefore, homicidal death of Kishan Nath has rightly been held by the trial Court. 6. Admittedly, there was no eye-witness to the occurrence but there were circumstantial evidence available on the file. The Apex Court has time and again held that prosecution must prove each of the circumstance having definite tendency pointing out towards guilt of the accused. Though each of the circumstance by itself cannot be conclusive but cumulative effect of proved circumstances must be so complete that it would exclude every other hypothesis and unequivocally points to guilt of the accused. In this respect, reference can be made to C. K. Revendran v. State of Kerala, 2000 Cr.L.J. (SC) 497 , Kanhai Mishra v. State of Bihar, JT 2001(3) SC 191 ; Sanjay v. State, JT 2001(2) SC 461 and Dhananjay Reddy v. State of Karnataka, JT 2001(3) SC 395 among others. In this respect, reference can be made to C. K. Revendran v. State of Kerala, 2000 Cr.L.J. (SC) 497 , Kanhai Mishra v. State of Bihar, JT 2001(3) SC 191 ; Sanjay v. State, JT 2001(2) SC 461 and Dhananjay Reddy v. State of Karnataka, JT 2001(3) SC 395 among others. Keeping in view above legal embodiments, we have scanned and scrutinised the prosecution evidence to see whether circumstances have not only been proving beyond reasonable doubt but also implicating the accused in the crime. 7. The first circumstance is that accused was residing with the deceased from 3-4 days prior to occurrence and was last seen with him. To prove the circumstance, PW 2 Chhoga Lal has stated that he used to go Mahadevji's temple regularly, whose Pujari was Kishan Nath (deceased). He has further stated that about 3-4 days prior to occurrence, accused-Premnath Sadhu was also present in the temple. The occurrence took place in the intervening night of 9/30.8.1997. On the day of the occurrence, this witness as usual went to the temple for worship and saw dead-body of Kishan Nath lying in grass, in front of the temple, having multiple injuries whereas accused-Premnath was in the premises of the temple and was crying that he has done nothing and was calling the chowkidar. The witness stated that thereafter he came back and informed Bhanwar Lal, Parasmal and Hema Ram Meghwal etc. Similar are the statements of PW 3 Parasmal and PW 5 Suresh Vyas. All these witnesses have been cross-examined at length yet nothing substantial could be elicited affecting their testimony adversely. They have neither made any improvemnt in the Court statement nor have been contradicted with their Police statements. No suggestion was made to them in the cross-examination that they have any grudge or motive to implicate the accused falsely. The trial Court has rightly held them trustworthy. 8. These three witnesses were the persons who used to visit the temple and have seen accused-appellant-Premnath with deceased-Kishan Nath, not only prior to the occurrence but also on the succeeding day, immediately after the occurrence. They have also seen accused-appellant-Premnath at the place of occurrence, shouting for the chowkidar and thereafter, accused-appellant left the temple hurriedly, boarded a bus from where he was apprehended by the police. They have also seen accused-appellant-Premnath at the place of occurrence, shouting for the chowkidar and thereafter, accused-appellant left the temple hurriedly, boarded a bus from where he was apprehended by the police. The above fact is also proved by PW 8 Babu Lal, SHO who deposed that he arrested Premnath-accused vide memo Ex.P /13, who was produced by the Dy.S.P., Jalore. Therefore, this circumstance that immediately before the occurrence, accused was also residing with the deceased in the temple for last 3 days and immediately after the occurrence, accused was seen at the place of occurrence and was seen leaving that place hurriedly and was arrested while boarding a bus. Even in the statement under section 313, Cr.P.C. accused has not denied his presence at the place of occurrence and has, on the contrary, stated that Suresh Kumar along with 2-3 other persons has inflicted injuries on the deceased. Had accused been not present at the place of occurrence, he would not have disclosed names of Suresh Kumar and 2-3 other persons causing injuries to deceased. Therefore, this first circumstance has 'been proved beyond reasonable doubt, which also is implicating the accused in the offence. 9. Another incriminating circumstance was that accused-appellant was also having multiple injuries on his person, which were proved by PW 4 Dr. Kailash Kumar Goswami, who not only examined accused but also prepared injury report Ex.P/18 and found following injuries on his person : 1. Lacerated wound - 3" x 1 /8" on right external ear teared out; 2. Abrasion & swelling -1.5" x 0.5" & 2" x 2" on right forearm on ulnar side; 3. Abrasions - 2" x linear, 2 in number, in left scapular region; 4. Abrasions - 4" x linear, 7-8 in number, in right scapular region; 5. Abrasion & swelling 2" x 2" on right supra scapular region; 6. Abrasion - 1" x 1" on upper ⅓rd of left leg; 7. Abrasion - 0.5" x 0.5" on middle ⅓rd of left leg; 8. Abrasion - 2" x 2" on anterior side of right knee; 9. Abrasion - 0.5" x 0.5" on base of right thumb on ulnar side. 10. Even arrest memo Ex.P/13 and seizure memo Ex.P/14 also indicate that there were multiple injuries on the person of the accused when he was apprehended. Abrasion - 2" x 2" on anterior side of right knee; 9. Abrasion - 0.5" x 0.5" on base of right thumb on ulnar side. 10. Even arrest memo Ex.P/13 and seizure memo Ex.P/14 also indicate that there were multiple injuries on the person of the accused when he was apprehended. These memos have been proved by PW 8 Babu Lal, SHO, who has not been cross-examined the slightest on this point. Even in statement under section 313, Cr.P.C., accused has not explained how he received above injuries. Therefore, the fact that at the time of occurrence, this accused has quarrelled with the dyceased and both of them have caused multiple injuries to each other. The presence of the accused at the time of occurrence is also proved beyond reasonable doubt. 11. The third circumstance against the accused-appellant was that this instance, the weapon of offence, knife, and some blood-stained stones were recovered. The knife so recovered was found to be stained with human blood vide chemical examination report Ex.P/20. The circumstance was proved by PW 8 Babu Lal, SHO and PW 3 Paras Mal, attesting witness. They have proved seizure memo Ex.P/8 by which the knife, weapon of offence as also blood-stained stone weighing 1.25 kgs. was recovered at the instance of the accused-appellant and was sealed then and there. This recovery was made on the basis of voluntary disclosure statement Ex.P/29 given by accused on 31.8.1997 to PW 8 Babu Lal, SHO. Though both these witnesses have been cross-examined at length but could not be assailed the slightest and their testimony has withstood the test of cross-examination. The articles so recovered at the instance of accused were deposited in sealed condition by the SHO in the Malkhana of the Police Officer and were deposited in the FSL, Jaipur with seals intact vide Ex.P/15 on 9.7.1997 by PW 6 Ramkesh, who has not been cross-examined much on this point. PW 10 Bachna Ram was incharge of the Malkhana and has proved that sealed articles marked A and B were handed over to him by the SHO Babu Lal, which were kept by him with seals intact in the Malkhana and an entry at serial No. 213 in the register was also made by him to above effect. PW 10 Bachna Ram was incharge of the Malkhana and has proved that sealed articles marked A and B were handed over to him by the SHO Babu Lal, which were kept by him with seals intact in the Malkhana and an entry at serial No. 213 in the register was also made by him to above effect. This witness has further stated that on 8.9.1997, he handed over these articles to Ramkesh, Constable for depositing the same in the FSL, Jaipur. Testimony of this witness, supported by testimony of PW 6 Ramkesh proves this circumstance also that knife, weapon of offence as also stone, were deposited in the Malkhana in sealed condition and were sent to FSL with seals intact. The knife so recovered was found stained with human blood. Therefore, this circumstance is also implicating the accused in the crime. 12. Learned amicus curiae relied upon Division Bench pronouncement of our own High Court in Raju Ram v. State, 1994 Cr.L.R. (Raj.) 329 as also Rajendra Kumar v. State, 1996 Cr.L.R. (Raj.) 199 and Vinod Kumar v. State, 1996 Cr.L.R. (Raj.) 420 to show that blood group was not ascertained. The Apex Court held in number of judgments, ranging from Teja Ram's case, JT 1992(2) SC 279; Guru's case JT 2000 Supp. 3 SC 528 and off late, Sanjay Kaku's case, JT 2001 (2) SC 461, that if origin of blood on articles is not proved that by itself would not be fatal to the prosecution case because often blood group is not detected on the articles due to its disintegration. Unless and until the accused is in a position to show that human blood found on the articles may be of his own, the above circumstance can be used against him. In the matter at hand, though multiple injuries were found on the person of the accused yet all these injuries were either contusions or abrasions. Had there been any blood-stained clothes recovered from the accused, the situation may have been different. Even assuming that from the ear of the accused blood may have oozed, that by itself will not show that his blood may come in contact with the knife so recovered at his instance. 13. Therefore, all these circumstances have rightly been found proved by the trial Court which has implicated the accused-appellant in the crime. Even assuming that from the ear of the accused blood may have oozed, that by itself will not show that his blood may come in contact with the knife so recovered at his instance. 13. Therefore, all these circumstances have rightly been found proved by the trial Court which has implicated the accused-appellant in the crime. We also do not find any infirmity much less any deficiency in the impugned judgment and according to us also, involvement of the accused in the crime is established beyond reasonable doubt. 14. Last submission of learned anzicus curiae was that though accused-appellant may not have stated so in statements under section 313, Cr.P.C. yet from the evidence available on the file, it is manifestly clear that accused along with deceased were quarreling and fighting in inebriated condition and they have been rebuked by PW 3 Paras Mal and were threatened to be shunted out of the temple if henceforth they took liquor. It is also abundantly proved by the prosecution evidence and more so by PW 4 Dr. Kailash Kumar Goswami that accused-appellant also received 9 blunt injuries on his person. It is also abundantly proved in the prosecution evidence that at the time of occurrence, accused and the deceased quarried and fought with each other. In such a situation, when accused was also given beating, he may have also given blows to deceased and some of which may have proved fatal. Learned amicus curiae in such circumstances submitted that offence does not fall under section 302, IPC as there was neither intention to kill nor a knowledge that death is likely to occur. 15. We have carefully considered the above contention. The Apex Court in similar circumstances in Jumman v. State of Punjab, AIR 1957 SC 469 was of the view that where there is no reliable and acceptable evidence as to how the mutual conflict developed and as to who was aggressor, the plea of private defence of either side would not be permitted. Such a case would be a case of sudden fight and would fall under exception (4) of Section 300, IPC.Keeping in view aforestated factual and legal position in mind, conviction under section 302, IPC is not maintainable. Such a case would be a case of sudden fight and would fall under exception (4) of Section 300, IPC.Keeping in view aforestated factual and legal position in mind, conviction under section 302, IPC is not maintainable. The appeal is partly accepted and accused-appellant is acquitted of the above offence, instead, he is convicted under section 304 Part II, IPC and awarded 5 years' rigorous imprisonment along with fine of Rs. 1,000/- in default of payment whereof he has to further undergo 3 months simple imprisonment. He is in jail since 30.8.1997. He shall server out the remaining part of the sentence. Appeal partly allowed. *******