JUDGMENT 1. - The instant appeal stems from the judgment dated August 31, 1996 passed by learned Special Judge, SC & ST (Prevention of Attrocities) Cases, Sawai Madhopur in Sessions Case No. 16/95/43 of 1995, whereby he convicted and sentence the appellants as under: Appellant Offence under section Punishment 1. Vimlesh 302 IPC to suffer imprisonment for life and a fine of Rs. 500/- in default to further undergo rigorous imprisonment for one year. 2. Ramjilal u/Ss. 302/34 IPC Imprisonment for life and a fine of Rs. 500/- in default of fine to further undergo one year r.i. under section 394 IPC to suffer 3 years and a fine of Rs. 500/- in default of fine further to suffer 6 months r.i., in default further 6 months. under section 323 IPC one year r.i. All the substantive sentences were directed to run concurrently. 2. The prosecution story is woven like this. On the basis of parcha bayan (Ex.R 7) of Chiranjilal (PW. 5) recorded on 8.12.1994 by Hari Singh (RW. 17) Sub Inspector, a case for offences under Sections 302, 241, 323 and 394 of the IPC came to be registered against the appellants and 3 other persons. A formal first information report (Ex.R 45) No. 135/1994 was registered and investigation commenced. The I.O. reached at the site and drew the site plan. Inquest report of the dead body of the deceased Bajaranga got prepared. Autopsy on the dead body of the deceased was conducted. Statements of witnesses under Section 161 Cr.RC. were recorded. The appellants and other three persons were arrested and on their instance the weapons allegedly used in commission of offence were got recovered. Blood stained clothes of the deceased as well as the blood smeared soil from the place of occurrence were also seized and sent for examination to Forensic Science Laboratory. On conclusion of the investigation a charge- sheet came to be filed. In due course the case came up for trial before the learned Special Judge, SC & ST (PA) Cases, Sawai Madhopur. The charges for offences under Sections 302, 307/34 and under Sections 307, 302/34 and 394 IPC were respectively framed against the appellants. The appellants denied the charges and claimed to be tried. 3. In due course the case came up for trial before the learned Special Judge, SC & ST (PA) Cases, Sawai Madhopur. The charges for offences under Sections 302, 307/34 and under Sections 307, 302/34 and 394 IPC were respectively framed against the appellants. The appellants denied the charges and claimed to be tried. 3. The allegations in the Parcha Bayan' against the appellants were that while Chiranji and his nephew Bajaranga were going to Phalodi factory for buying diesel, the appellants who were standing near the well belonging to Kalyan called them and asked as to where they were going. Chiranji, Bajaranga and the appellants then sat down and started puffing Bidis When Chiranji and Bajranga proceeded suddenly, younger brother of Ramjilal caught hold of Bajranga and had a scuffle with him. The said persons was armed with Katta (Country made gun). He put that Katta on the stomach of Bajranga and when Chiranji made an attempt to save Bajranga, Ramjilal inflicted an axe blow on his head as a result of which Chiranji fell down. In the meantime, brother of Ramjilal threw Katta and got an Axe and thereafter, inflicted an axe blow on the head of Bajranga as a result of which Bajranga became unconscious and fell down. Thereafter, Ramjilal removed Rs. 4,000/- from the pocket of Chiranji. On hearing hue and cry of Chiranji, Kalyan, Kana son of Kesar Bairwa came there from the village side and they also started beating Chiranji and Bajranga. After sometime Ramjilal son of Sheonarain and Sheodan son of Radha Kishan came other there and on seeing them the appellants and above three persons fled away. Bajranga was taken to the hospital where he died. 4. The prosecution in support of his case examined as many as 23 witnesses and exhibited 45 documents. In their explanation under Section 313 Cr.RC. the appellants claimed innocence and pleaded that they were implicated in a false case. No defence witnesses however were examined by the appellants. The learned trial Judge on hearing the final submissions convicted and sentenced the aforesaid appellants as indicated herein above. 5. We have heard the rival submissions made by the learned counsel for the parties and carefully scanned the material on record. 6. The super of the prosecution case is based in the eye witness account of Chiranji (PW 5). The learned trial Judge on hearing the final submissions convicted and sentenced the aforesaid appellants as indicated herein above. 5. We have heard the rival submissions made by the learned counsel for the parties and carefully scanned the material on record. 6. The super of the prosecution case is based in the eye witness account of Chiranji (PW 5). This testimony is sought to be supported by the medical evidence of Dr. Pritam Chand (PW 21) and by the statement of Dashrath Singh I.O. (RW. 23). 7. In his deposition Chiranji (RW. 5) stated that on the date of incident he and his nephew Bajranga were going to village Phalodi around 4.00 p.m. as Bajranga had to pay money to Ramcharan there. When they reached near the well of Kalyan, they found appellants Vimlesh and Ramjilal standing. On being enquired by them as to where they were proceeding, he informed that they were going to purchase diesel. Appellants Vimlesh and Ramjilal then persuaded them to puff Bidi and they acceded their request. After puffing Bidi when they wanted to proceed, Vimlesh grappled with Bajranga. When Chiranji made an attempt to save Bajranga, Ramjilal inflicted a blow with axe on his head as a result of which he fell down. Thereafter, Vimlesh and Ramjilal both inflicted blows on the person of Bajranga with axes and Bajranga became unconscious. Ramjilal removed Rs. 4,000/- from the pocket of Chiranjilal. Other accused Kalyan, Kana and Sheonarain also came over there and they gave blows with Lathi and Spade. Kalyan and Kana persuaded all other accused to kill Chiranji and Bajranga. Finding Sheodan and Ramjilal coming over there, the accused persons left the place of occurrence. Thereafter, Bajranga was taken to the local hospital. The Doctor advised to take him to Sawai Madhopur but before reaching to Sawai Madhopur, Bajranga died. In the cross- examination, Chiranji deposed that he did not know anything about Katta and he gave to information to the police about Katta. He disowned the portion A to B of Ex.R 7 wherein he stated that appellant Vimlesh was armed with Katta which he put on the stomach of Bajranga. He also disowned the portion A to B of his police statement (Ex.D.1) wherein he had stated that Vimlesh put katta oh the stomach of Bajranga. 8. He disowned the portion A to B of Ex.R 7 wherein he stated that appellant Vimlesh was armed with Katta which he put on the stomach of Bajranga. He also disowned the portion A to B of his police statement (Ex.D.1) wherein he had stated that Vimlesh put katta oh the stomach of Bajranga. 8. It appears from the close scrutiny of the statement of Chiranji that he had shown pocket of his black coat to the police did not seize the said coat. Chiranji also clarified that he did not know as to how many brothers Ramjilal had put he did certainly know Ramjilal and Vimlesh because he had occasion to see them in the village. 9. We have also closely evaluated the post-mortem report of Bajranga which shows that Bajranga sustained the following ante-mortem injuries : 1. incised wound clotted blood 31/4 cm X 3/4 cm X 1.5 cm bone deep vertically on right parietal region of scalp 2 cm. above the right ear over right parietal tempera frontal region of scalp margin sommot clean cut well defined angles sharp hait bulbs cut on direction of scalp. There is haematoma between scalp and skull present haemen right side after removing the haemotoma and muscles of right side skull fracture of right parietal and frontal bone seen through which blood is coming. On opening the scalp extra dural dark clotted blood was present on right side meanings cut and found congested injury deem dangerous to life by sharp object and is sufficient to cause death in ordinary course of life. Ante-mortem in nature. 2. Red colour bruise 9 cm X 3.5 cms obliquely vertical on anterior surface of lower 1/2 of right chest simple blunt; 3. abrasion clotted blood 2 cm X 1/2 cm vertically on posterior surface of left fore arm simple blunt; 4. red colour bruise 1.5 cm X 1.5 cm abrasion of clotted blood irregular on left lateral surface of chest simple blunt; and 5. red colour bruise 9 cm X 1.5 cm obliquely transverse on anterolateral surface of left thigh simple blunt. abrasion clotted blood 2 cm X 1/2 cm vertically on posterior surface of left fore arm simple blunt; 4. red colour bruise 1.5 cm X 1.5 cm abrasion of clotted blood irregular on left lateral surface of chest simple blunt; and 5. red colour bruise 9 cm X 1.5 cm obliquely transverse on anterolateral surface of left thigh simple blunt. 9-A. Having hear the contentions advanced before us and scanned the material on record, we are of the opinion, that the case under Section 354 IPC is made out against the appellant Ramjilal as neither the alleged looted money was recovered from his person nor the trustworthy evidence was produced to substantiate the charge. But from the testimony of Chiranji and Dr. Pritam Chand, it is however established that Ramjilal inflicted injury with sharp edged weapon on the person of Chiranji and Ramjilal is found guilty of committing an offence under Section 324 Indian Penal Code It does also not appear from record that Ramjilal had shared common intention with co- accused Vimlesh to commit an offence under Section 302 Indian Penal Code Ramjilal is only found guilty of his individual act and charge under Section 302/34 IPC is not established against him. 10. From the material on record we find that the incident had occurred on a spur of moment and there was no ill will between the appellants and the deceased. Just before the incident appellant Vimlesh and deceased Bajranga had puffed Bidi together and the appellant Vimlesh did not take any undue advantage of the situation as he did not repeat the blow and there was only one sharp injury on the person of the deceased Bajranga. Under these circumstances, we are of the considered opinion, that the case of appellant Vimlesh comes under the purview of exception 4 of Section 300 Indian Penal Code Therefore, we hold appellant Vimlesh guilty for offence under Section 304 Part II Indian Penal Code Appellant Vimlesh is in custody for more than 6 years and the ends of justice would be met in sentencing the period already undergone by him. 11. In the result, we allow the appeal in part. While modifying the impugned judgment dated August 31,1996 be alter the conviction of appellant Vimlesh from Section 302 IPC to Section 304 Part II IPC and sentence him to the period already undergone by him in detention. 11. In the result, we allow the appeal in part. While modifying the impugned judgment dated August 31,1996 be alter the conviction of appellant Vimlesh from Section 302 IPC to Section 304 Part II IPC and sentence him to the period already undergone by him in detention. We set aside the conviction of Ramjilal under Sections 302/34, 394 and 323 Indian Penal Code 12. Appellant Ramjilal is convicted under Section 324 IPC but is sentenced to the period already undergone by him. The appellant Vimlesh is in jail. He shall be released forthwith if not required in any other case. Appellant Ramjilal is on bail and he need not surrender. His bail bonds shall stand discharged.Appeal disposed of accordingly. *******