JUDGMENT 1. - Quirks of destiny turned brothers into enemies. Bajrzeilg Lal and Mahaveer, appellants herein, were put to trial before learned Additional Sessions .Judge, (Fast Track) No. 1, Kota, for having committed murder of their brother Mohan Lal, Learned Judge found the appellants guilty and convicted and sentenced them vide judgment dated February 11, 2002 as under : Bajrang Lal : U/s. 302 IPC : To suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer simple imprisonment for three months. Mahaveer : U/s. 302/34 IPC : To suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer simple imprisonment for three months. 2. As per the prosecution story on December 17, 1996 at 1 PM while Sita Ram (Pw.13) was Incharge of Police Station Khatoli, a trolly got halted in front of the Police Station. Inside the trolly a lady Geeta Bai (Pw.5) was crying and shouting that her husband was killed. Sita Ram went out of the police station and saw a person lying injured in the trolly. He was unconscious. On being enquired Geeta Bai could only say that injured person was her husband Mohan Lal. Since Geeta Bai was not in a position to furnish the details of the incident, Sita Ram entered a formal report in Rojnamcha and removed Mohan Lal to Itawa hospital where Heera Lal SHO (Pw.20) also reached. Geeta Bai handed over a written report (Ex.P-2) to SRO at 2 PM to the effect that on the said day at 9.00 AM when she was at Hanuman temple she heard loud voices coming from the side of her field. She then rushed to the filed where she saw her Jeth Bajrang Lal and Devar Mahaveer quarrelling with her husband. They had driven their tractor crossing the field of her husband and when he protested Bajrang Lal gave blow with `Paraniya' on his head and Mahaveer inflicted blow with iron rod having three sides (Lohe ki teen sankh wali Aankri) over the right ear. When her husband fell down they gave blows over his right cheek and right eye. Shankar Lal Dhakar, Pappu Gujar, Madan Dhakar etc. took her husband to the village thereafter he was taken to village Bangrod in a bullock cart and from Bangrod to police station in a tractor. The police then took him in a jeep to the hospital. When her husband fell down they gave blows over his right cheek and right eye. Shankar Lal Dhakar, Pappu Gujar, Madan Dhakar etc. took her husband to the village thereafter he was taken to village Bangrod in a bullock cart and from Bangrod to police station in a tractor. The police then took him in a jeep to the hospital. On that report case under sections 307, 323 and 34 IPC was registered and investigation commenced. In the course of investigation Mohan Lal succumbed to his injuries and section 302 IPC was added. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Kota. Charges under sections 302, 302/34 and 447 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In the explanation under Section 313 Cr.PC., the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. 3. Death of Mohan Lal was concededly homicidal in nature. As per the Post Mortem Report (Ex.P-6) the cause of death was coma as a result of head injury, It also appears that prior to death the injuries sustained by Mohan Lal were examined vide Injury Report (Ex.P-2), which reads thus : 1. Lacerated wound 2.5cm x 0.5cmx muscle deep at Rt. parietal region of head. 2. Bruise with swelling 6 x 2cm in between Rt. ear and eye. 3. Lacerated wound 3 x 1/2cm x skin deep post side of Rt. ear towards lower 1/2 region. Fracture of Rt. parietal bone was found. Dr. Dinesh Kumar (Pw.2) who examined the injured deposed that all the three injuries were caused by the blunt weapon and injury No. 1 on being X-rayed was found grievous. He could not measure the distance between the three injuries but he candidly stated that all the three injuries could be caused by one weapon. Dr. Y.K. Sharma (Pw.4) who performed autopsy on the dead body in his cross examination deposed that all the three injuries could be caused by one large weapon. He could not measure the distance between the three injuries but he candidly stated that all the three injuries could be caused by one weapon. Dr. Y.K. Sharma (Pw.4) who performed autopsy on the dead body in his cross examination deposed that all the three injuries could be caused by one large weapon. He also did not notice distance between the injuries. 4. Having closely scrutinised the testimony of Geeta Bai, we find it consistent qua appellant Bajrang Lal alone. It appears to us that Geeta Bai made extra efforts to involve appellant Mahaveer in the case. Geeta Bai deposed in her examination in chief that she rushed to the place of incident after hearing the shouts of Mohan Lal. She attributed first blow on the head of Mohan Lai to Mahaveer and second blow on head to Bajrang Lal : HINDI MATTER 495242 In the written report she however stated thus HINDI MATTER 5. To invoke the provision of Exception 4 to Section 300 IPC two essentials are necessary to be established. Firstly, it must be proved that the culpable homicide was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. Secondly, it must be established that the offenders did not take undue advantage or act in a cruel or unusual manner. 6. On analysing the fact situation of the case by the yardstick of probabilities, its intrinsic worth and animus of witnesses we find that the prosecution is only able to establish beyond reasonable doubt that it was a case of sudden fight and the appellant Bajrang Lal after hot exchanges inflicted a blow with Paraniya on the head of deceased in such a manner that it hit right parietal region and right ear simultaneously and caused lacerated wounds over right parietal region of head and post side of right ear. As a result of those injuries bruise with swelling appeared between right ear and eye. This view finds support from the testimony of Dr. Dinesh Kumar (Pw.2) and Dr. Y.K. Sharma (Pw.4). In the facts and circumstances of the case Bajrang Lal might be said to have caused injury as is likely to cause death, with an intention to cause death and he can be convicted under section 304 Part I. 7. This view finds support from the testimony of Dr. Dinesh Kumar (Pw.2) and Dr. Y.K. Sharma (Pw.4). In the facts and circumstances of the case Bajrang Lal might be said to have caused injury as is likely to cause death, with an intention to cause death and he can be convicted under section 304 Part I. 7. So far as the allegations against appellant Mahaveer is concerned we find that his participation in the guilt could not be established beyond reasonable doubt. Possibility of over implication of Mahaveer cannot bo ruled out and he is entitled to benefit of doubt. 8. For these reasons, we dispose of instant appeal in the following terms : (i) We partly allow the appeal of Bajrang Lal and instead of Section 302, we convict him under Section 304 Part 1 IPC and sentence to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer six months rigorous imprisonment. (ii) We allow the appeal of appellant Mahaveer and acquit him of the charge under section 302/34 IPC. Appellant Mahaveer is on bail, he need not surrender and his bails bonds stand discharged. (iii) The impugned judgment of learned trial court stands modified as indicated above. Appeal of a B Partly and that M fully allowed. *******