JUDGMENT 1. - The appellant was accused on the file of learned Special Judge (Communal Riots Cases) Tonk bearing Sessions Case No.53/93 (57/91). Learned Judge vide judgment dated September 23, 1999 convicted and sentenced the appellant as under: U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer imprisonment for one month. U/s. 307 IPC: To suffer rigorous imprisonment for five years and fine of Rs. 300/-, in default to further suffer imprisonment for fifteen days. U/s. 325/34 Indian Penal Code : To suffer rigorous imprisonment for three years and fine of Rs. 250/-, in default to further suffer imprisonment for fifteen days. U/s. 324 IPC: To suffer rigorous imprisonment for two years and fine of Rs. 200/-, in default to further suffer imprisonment for one week. U/s. 323/34 IPC: To suffer rigorous imprisonment for six months and fine of Rs. 100/-, in default to further suffer imprisonment for one week. Substantial sentences were ordered to run concurrently. 2. The incident as pictured by the prosecution, happened like this. On August 7, 1991 at 7.45 PM Mahavir Singh ASI, Police Station Niwai recorded parcha bayan (Ex.P- 8) of Ramesh Chand (PW.1) who was admitted in Government Hospital Niwai. In the parcha bayan Ramesh Chand stated that at about 5.00 PM when he himself, his brother Satyendra Kumar (deceased) and his two sons Anil Kumar and Sunil Kumar were cleaning the drains of his house the appellant along with Sita Ram and their women came over there. Appellant then caused injury on the person of informant When Satyendra Kumar intervened, blow with axe was inflicted on his head by the appellant, as a result of which Satyendra Kumar died on the spot. Police Station Niwai registered a case under sections 302, 307, 324 and 323/34 Indian Penal Code and investigation commenced. On completion of investigation charge sheet was filed against the appellant and three other co-accused viz. Sitaram. Smt. Chhoti and Smt. Santosh. In due course the case came up for trial before the learned Special Judge (Communal Riots Cases) Tonk. Charges under Sections 302, 307, 326, 325, 324, 323 alternatively 302/34, 307/34, 326/34, 324/34 and 323/34 Indian Penal Code were framed against the appellant and the co-accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 27 witnesses. Charges under Sections 302, 307, 326, 325, 324, 323 alternatively 302/34, 307/34, 326/34, 324/34 and 323/34 Indian Penal Code were framed against the appellant and the co-accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 27 witnesses. In the explanation under Section 313 Cr.P.C. the appellant claimed innocence. No witness in defence was however examined. During the pendency of trial co-accused Sitaram died and the proceedings against him stood dropped. Learned trial Judge on hearing the final submissions convicted and sentenced the appellant as indicated herein above. Co-accused Smt. Chhoti and Smt. Santosh were however acquitted. 3. Having scanned the testimony of Ramesh Chand (PW.1), who himself sustained injury in the incident, we noticed certain peculiar facts. Ramesh Chand in his examination in chief admitted that the drains of his house that were flushing filth and dirty water on the field belonging to the appellant, got blocked by the appellant on the day of the incident. Finding the drains blocked Ramesh Chand, Satyendra Kumar. Anil Kumar and Sunil Kumar entered into the field of appellant and started unblocking the drains. Appellant who was present in the field along with Sitaram, Smt. Chhoti and Smt. Santosh then inflicted axe blows on the person of Ramesh Chand and Satyendra Kumar. Statement of Ramesh Chand gets corroboration from the testimony of other injured eye witnesses Anil Kumar (PW. 14) and Sunil (PW. 17). 4. The prosecution is able to establish that death of Satyendra Kumar was homicidal and as per postmortem report the deceased sustained two lacerated wounds over occipital and right parieto temporal region of skull. The cause of death was shock due to haemorrhage due to fracture of right tempo parietal bone. Ramesh Chand, Anil Kumar and Sunil also received injuries that were grievous and dangerous of life in nature. 5. The appellant vide injury report Ex. D-6 also received as many as five injuries out of which one was lacerated wound 3/4 cm x 1/2 cm X muscle deep over the inner surface of middle of left forearm. 6. Factual situation of the case may be summarised thus : (i) As many as four drains of the house of informant Ramesh Chand and deceased Satyendra Kumar were opened on the field of the appellant. 6. Factual situation of the case may be summarised thus : (i) As many as four drains of the house of informant Ramesh Chand and deceased Satyendra Kumar were opened on the field of the appellant. Out of the four drains, two were just nine inches above the field whereas other two were at the height of ten feet. (ii) On the day of incident two drains were blocked by the women of appellant's family. (iii) Informant Ramesh Chand, deceased Satyendra Kumar, Anil Kumar and Sunil entered into the field of the appellant and started unblocking the drains by removing soil out of the drains. "The appellant, Sitaram, Smt. Chhoti and Smt. Santosh who were present on the field, protested and warned them not to unblock the drains. When the complainant party did not pay any heed to the warning, the injuries were inflicted by the appellant and Sitaram. (iv) Appellant also sustained five injuries out of which one is lacerated wound. (v) Ramesh Chand (PW. 1), Anil Kumar (PW. 14) and Sunil (PW. 17) received injuries which were grievous and dangerous of life in nature. 7. We have pondered over the rival submissions, in our considered opinion the guilt under sections 307, 325/34, 324 and 323/34 Indian Penal Code is established beyond reasonable doubt against the appellant and for these offences he was rightly convicted and sentenced. But in the facts and circumstances of the case where the deceased himself took the law in his hand by entering into the field of the appellant and started unblocking the drains despite of the protest made by the appellant and the appellant himself sustained injuries which could not be explained by the prosecution. We are of the view that the appellant could be held guilty under section 304 Part II IPC. It appears that the appellant committed the offences without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel which was not initiated by him. The offence cannot be said to have been committed in a cruel or unusual manner. The appellant was therefore, entitled to the benefit of Exception 4 of Section 300 IPC. 8. For these reasons, we partly allow the appeal and instead of Section 304 IPC, we convict the appellant under section 304 Part II IPC. The offence cannot be said to have been committed in a cruel or unusual manner. The appellant was therefore, entitled to the benefit of Exception 4 of Section 300 IPC. 8. For these reasons, we partly allow the appeal and instead of Section 304 IPC, we convict the appellant under section 304 Part II IPC. Since the appellant has undergone confinement for a period of five years and five months, the ends of justice would be met in sentencing him to suffer confinement for the period already undergone by him. We, however, confirm the finding of conviction and sentence under section 307, 325/34, 324 and 323/34 IPC. The appellant, who has undergone all the sentences shall now be set at liberty forthwith, if not required to be detained in any other case. *******