JUDGMENT 1. - Heard the learned counsel for the accused persons as well as learned Public Prosecutor for the State. 2. These two appeals arise out of judgment dated 18.10.2005 passed by learned Additional Sessions Judge, (Fast Track) No. 1, Bhilwara in Sessions Case No. 2/2005, State of Rajasthan v. Madan & Ors. 3. By the impugned judgment dated 18.10.2005, learned Additional Sessions Judge convicted accused-appellants Madan S/o Sukhdev Jat and Jagdish S/o Ram Chandra Jat, both residents of village-Salariya Kala, Police Station-Baneda, District- Bhilwara, for offence punishable under Section 302 Indian Penal Code and sentenced them to undergo imprisonment for life term, with fine Rs. 2000/- each, in default of payment whereof to further undergo two month's simple imprisonment. 4. By the same judgment impugned, accused-respondent Smt. Kanku wife of Madan Jat, resident of Salariya Kala, P.S. Baneda, District-Bhilwara was acquitted from the charges pertaining to offence punishable under Sections 302 and 120-B. 5. These two appeals by respective appellants are preferred to question the correctness of the judgment aforesaid. The accused-appellants-Madan and Jagdish have challenged under Section 374(2) Criminal Procedure Code the conviction recorded and sentence awarded against them while the State of Rajasthan has preferred appeal under Section 378 Criminal Procedure Code to challenge acquittal of accused-respondent Smt. Kanku. 6. In brief, the facts of the case are that on 23.9.2004 at about 11:50 AM a written report (Ex.P-20) was submitted by Suresh Chandra Jat (PW-12), who was present at the place of occurrence of the offence in question, to Mr. Durga Prasad Dadhich, Station House Office. P.S. Baneda (PW-26), inter alia, to this effect that his ancestral land (field) is situated in southward area of the village. The fields of Madan and Ram Chandra are also located near his field. On that day he and his father Pannaji Jat went to their field at about 7 O'clock in the morning. 7. When they were working in the field, Madan, Mrs. Kanku and Jagdish S/o Ramchandra came from village side at about 10 O'clock. At that time, his father was smoking 'Bidi' while sitting on bounds of the well and he was cutting grass. All of those persons (3-4) all of a sudden started beating his father. Madan and Jagdish inflicted lathi blows on the body of his father while Mrs. Kanku, who was holding 'dantli' in her hand, also inflicted blows with 'dantli' upon his father. All of those persons (3-4) all of a sudden started beating his father. Madan and Jagdish inflicted lathi blows on the body of his father while Mrs. Kanku, who was holding 'dantli' in her hand, also inflicted blows with 'dantli' upon his father. His father raised hue and cry. He hide himself behind corn heap out of fear. 8. After about 15-20 minutes these assailants went away towards village then the complainant-Suresh came out and saw that blood was oozing from mouth and nose of his father. Thereafter, he went into the village and narrated whole incident to his mother and villagers. As a result of beating by these assailants, his father has died. 9. On the basis of aforesaid information (Ex.P-42), first Information Report No. 187/2004 (Ex.P-42) was registered against assailants- Madan Jat, Smt Kanku W/o Madan Jat and Jagdish S/o Ram chandra Jat. During the course of investigation, panchnama of dead body of deceased Panna (Ex.P-16) was prepared, photographs of the site of occurrence were taken (Ex.P-6 to P-15), blood-stained cloths of deceased were seized (Ex.P-22), blood-smeared soil was also sampled (Ex.P-23) and postmortem of the dead body was got conducted, for which postmortem report is Ex.P-1. 10. The accused-persons Smt Kanku and Madan Lal were arrested vide memos Ex.P-17 and Ex.P-18. On the basis of information by accused-appellant Madan, blood-stained lathi was recovered and seized (Ex.P-27), shirt and vest of Madan were also seized (Ex.P-28), 'dantli' was recovered from Mrs. Kanku and seized (Ex.P-29). Accused-appellant Jagdish was arrested vide Ex.P-41, blood- stained white shirt was recovered from the accused-appellant Jagdish (Ex.P-30) and one stick (Khunta) in two parts was also recovered from Jagdish (Ex.P-31). The seized articles were sent of Forensic Science Laboratory, Udaipur for analysis. 11. After due investigation, challan was filed against the accused- appellants-Madan and Jagdish as also accused-respondent Mrs. Kanku for offence punishable under Sections 302, 120-B Indian Penal Code before the Judicial Magistrate, First Class, Bhilwara (West). The case was then committed to the Court of Sessions, where it- was assigned to the Court of Additional Sessions Judge (Fast Track) No. 1, Bhilwara for trial and disposal. 12. Learned trial Court on 27.1.2005 framed charges of offences under Sections 302, 120-B I.P.C against accused persons, who denied commission of crime alleged against him and claimed trial. 13. The case was then committed to the Court of Sessions, where it- was assigned to the Court of Additional Sessions Judge (Fast Track) No. 1, Bhilwara for trial and disposal. 12. Learned trial Court on 27.1.2005 framed charges of offences under Sections 302, 120-B I.P.C against accused persons, who denied commission of crime alleged against him and claimed trial. 13. During the trial, prosecution supported its case with the aid of 26 witnesses and exhibited 44 documents. An opportunity was given to the accused persons as per provisions of Section 313 Criminal Procedure Code to explain their conduct with regard to adverse material available in the evidence adduced by the prosecution. The accused persons negated the prosecution evidence and contended that they are innocent and they have been falsely implicated in this case. In defence, documentary evidence of statements given under Section 161 Criminal Procedure Code by Suresh Chand (Ex.D-1), by Sobhag Singh (Ex.D-2) and By Ladu/Chandu (Ex.D-3) was produced. No other evidence was produced in defence. 14. The learned trial Court after examining entire evidence on record, convicted accused-appellants Madan and Jagdish for offence punishable under Section 302 Indian Penal Code but acquitted Mrs. Kanku W/o Madan Jat. 15. In the present appeal, it is submitted by learned counsel for the accused-appellants Madan and Jagdish that the prosecution evidence suffer from reasonable doubt to believe definite involvement of the accused-appellants in the crime alleged, therefore, they are entitled to receive benefit of doubt and thus, acquittal. According to the learned counsel, there are lot of contradictions and improvements in the statements of so-called eye-witnesses. The recovery made at the instance of accused persons are not reliable and further, there were no eye- witness available on record at the time of incident but the prosecution has later on developed two eye-witnesses-Suresh (PW-12) and Ladu (PW-18) but as per prosecution story, they could not be the eye-witness. 16. It is also submitted that the learned trial Court has gravely erred in law in not appreciating the evidence available on record in correct perspective. 16. It is also submitted that the learned trial Court has gravely erred in law in not appreciating the evidence available on record in correct perspective. He further contended that it is pertinent to mention that falsity of these two witnesses (PW-12 and PW-18) of the having witnessed the occurrence is proved by the fact that the deceased got fractures on his person but there was no outer injury on his body, meaning thereby when there was no such injury and the eye- witnesses have stated that the injuries were inflicted by 'dantli' and lathi, if they would have been so caused, the deceased must have received some outer injuries also. 17. Learned counsel submitted that as per statement of PW-12 Suresh, he had seen accused Madan and Jagdish inflicting 20-30 lathi blows to deceased Panna and Mrs Kanku also inflicted 'dantli' blow upon deceased, However, as per medical report, there was no injury by sharp-edged weapon. The conduct of PW-12 Suresh is highly doubtful and unreliable because somebody is beating to his father Panna and he will not go to rescue him and he would have witnessed the alleged incident, it would have been possible for him to save his father or raise hue and cry for help but he did not do such act. As per postmortem report (Ex.P-1) the deceased said to have sustained 8 injuries but the Doctor has not stated said injuries to be sufficient in the ordinary course of nature to cause death. 18. Learned counsel for the accused-appellants finally submitted that even accepting the prosecution story to be true, the offence alleged the accused- appellants Madan and Jagdish cannot travel to Section 302 Indian Penal Code It is argued that there was absolutely no evidence to show that the accused-appellants Madan and Jagdish had any intention to commit murder, as medical evidence by PW-1 Dr. Ramesh Chandra Samariya and PW-2 Dr. Ram Gopal Goyal established that they had no intention to cause murder of deceased Panna. All injuries were caused by lathi. Ramesh Chandra Samariya and PW-2 Dr. Ram Gopal Goyal established that they had no intention to cause murder of deceased Panna. All injuries were caused by lathi. The action of the accused-appellants in causing injury to the deceased was as a result of spur of hot moment in view of narration of the incident by the witnesses and the accused-appellants Madan and Jagdish cannot be attributed with any pre-plan for causing such injuries to the deceased as may be sufficient in the ordinary course of nature to have caused death. Thus, it is apparent that the act of the accused-appellants Madan and Jagdish was occasioned in the spur of hot emotional moments, which may at best be punishable under Section 304 I.P.C. 19. While contesting the appeal, it is submitted by the learned Public Prosecutor that there is no reason to disbelieve testimonies of eye-witnesses PW-12 Suresh and PW-18 Ladu and other prosecution witnesses, recovery of articles and weapons of offence; hence, the prosecution has proved its case beyond doubt so as to establish that it were the accused persons who committed the instant crime. 20. It is contended by learned Public Prosecutor that it is not necessary for every person to react in a particular manner. While supporting the Judgment of the trial Court, learned Public Prosecutor submitted that as per postmortem report (Ex.P-1), deceased Panna died due to hypovolemic shock and haematoma in brain. As such, the accused-appellants Madan and Jagdish were rightly convicted by the trial Court. Hence, the present appeal lacks merit and the same is liable to be dismissed. 21. We have given our thoughtful consideration to the.submissions made by the learned counsel for the accused-appellants Madan and Jagdish also by the learned Public Prosecutor and scanned through the entire evidence as well the judgment impugned passed by the trial Court. 22. PW-1 Dr. Ramesh Chandra Samariya and PW-2 Dr. Ram Gopal Goyal proved the postmortem report Ex.P-1, PW-3 Ramswaroop was in-charge Malkhana at P.S. Baneda and PW-4 Banai Singh, Constable was carrier of seized articles to F.S.L. Udaipur. PW-6 Lahr Ram, constable in S.P. Office prepared forwarding letter to the F.S.L., Udaipur. 22. PW-1 Dr. Ramesh Chandra Samariya and PW-2 Dr. Ram Gopal Goyal proved the postmortem report Ex.P-1, PW-3 Ramswaroop was in-charge Malkhana at P.S. Baneda and PW-4 Banai Singh, Constable was carrier of seized articles to F.S.L. Udaipur. PW-6 Lahr Ram, constable in S.P. Office prepared forwarding letter to the F.S.L., Udaipur. PW-7 Gordhan Lal was photographer, who snapped photos (Ex.P-6 to P-14), PW-9 Kan Singh was motbir to Panchanama (Ex.P-16), arrest of Mrs Kanku (Ex.P-17) and Madan Jat (Ex.P-18), PW-10 Bheru Singh was witness to Ex.P-19 and PW-11-Mangu Jat was motbir to memko Ex.P-16 PW-12 Suresh Jat was complainant and eye-witness of the incident, who lodged the F.I.R. (Ex.P-20) on the spot. 23. PW-13 Smt Raj Kumari (Constable) was witness to arrest of Mrs Kanku (Ex.P-17), PW-14 Ramchandra was witness to memos Ex.P-16 and Ex.P-21 to Ex.P-23. PW-16 Sobhag Singh deposed that some time prior to the incident, at the Bus Stand Jagdish said to him that we shall settle the score before Teja Dashmi. This witness was motbir to memos Ex.P-25 to Ex.P-36. 24. PW-18 Ladu Singh was cited eye-witness, who deposed that he was accused persons were giving beating to deceased Panna and blood was drifting from his injuries. Madan threatened him to go away else he will also be killed. PW-19 Mrs Chandu, PW-20 Ganpat Singh and PW-21 Onkar Das are witness of various recovery memos. 25. PW-22 Mrs. Chanchal, ANM of the Primary Health Center and PW- 23-Shanker Singh, ASI were Investigation Officer. PW-24 Mukesh Kuamr was witness to arrest of Jagdish (Ex.P-41). PW-25 Vijay was Patwari, who proved revenue status of the field and PW-26 Durga Prasad, S.H.O. of P.S. Baneda was the Investigation Officer. PW-5 Jamna Lal, PW-8 Nathu Bhil, PW-15 Shivraj and PW-17 Narain Singh were declared hostile. 26. Looking to the medical evidence available on record, there is no doubt about homicidal death of Panna Lal. As per postmortem report Ex.P-1, person of deceased Panna Lal has found to have sustained following injuries: (i) Wound/bruise-Radius, Ulna at mid-end of wrist-Right UL (ii) Ligature-Humerus, Scapula-L UL (iii) Tibia, Fibula-LLL (iv) Multiple injuries and clotted blood-PLL (v) Swelling-4"x3" - U AUIJ - Junction of occipital parietal bones (vi) Sharp incised wound-Left temoro-parietal region (vii) Multiple abraisons-Back (viii) Bruise-12 "xl " - ribs Cause of Death-injuries causing hypovolemic shock and haematoma in brain. 27. In their cross-examination, PW-1 Dr. 27. In their cross-examination, PW-1 Dr. Ramesh Chandra Samariya and PW-2 Dr. Ram Gopal Goyal admitted that it is not mentioned in the postmortem report Ex.P-1 that all injuries were ante-mortem and nature of injuries were also not mentioned. There was no fracture on head of deceased Parma Lal. There was no corresponding outer injury found where fractures were pointed out. It was not possible for them to state with what type of weapon the injuries were caused. 28. The recoveries made at the instance of accused-appellants were of lathi. The injuries found on the person of deceased Parma, as per medical evidence, could have been received by blunt weapon like lathi. The lathi, two pieces of wood-stick, dhoti and kamij (shirt) were found to have been stained with B-group blood, as per F.S.L. report Ex.P-37. It is trite that on 'dantili' blood could not be determined, for the reason that it was not sufficient for the test. 29. Learned trial Court found evidence by eye-witness PW-12 Suresh, who lodged the F.I.R. on the spot after the incident, corroborated from evidence of PW-18 Laju Jat and also found evidence of other prosecution witnesses and medical evidence of PW-1 Dr Ramesh Chandra Samriya and PW-2 Dr. Ram Gopal Goyal, Suresh(PW-12) -rid Ladu (PW-18 who clearly deposed in their Court statements that accused Madan and Jagdish inflicted lathi blows on body of Panna (deceased). PW-12 Suresh fully proved the version as stated by him is the F.I.R. (Ex.P-20). The F.S.L. report (Ex.P-37) found that the blood found on lathis (weapon of offence), seized clothes matched and found to be 'B'-group. Minor discrepancies, contradictions, omissions or improvements are bound to occur. 30. In the facts and circumstances of this case and the prosecution evidence on record, as referred above, therefore, we are of the opinion that no fault can be found with conviction of the accused-appellant. We do not find any reason to disbelieve the testimonies of PW-12 Sruesh S/o Panna Lal (deceased). Ladu Jat (PW-18). The evidence of recovery of lathi, other important incriminating circumstances and the F.S.L. report in respect of blood-stained clothes seized during the investigation; are sufficient to form a definite opinion about involvement of the accused persons in commission of the crime alleged against them. 31. In our view, evidence of a witness cannot be rejected on the ground that he did not behave in a particular manner. 31. In our view, evidence of a witness cannot be rejected on the ground that he did not behave in a particular manner. Different people react differently in different situations and circumstances. No hard and fast rule or universal application with regard reaction by a person in a given circumstance be Laid down. As a matter of fact, it depends upon individual to individual. There cannot be set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling with in a set pattern is unproductive and pedantic exercise. 32. The Court cannot expect a set reaction from any eye-witness on seeing an incident. Whereas some become speechless, some start wailing, whereas some others run ways from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. It is difficult to probe into minds of people as to how they act in a particular way. Every person cannot act or react in a particular manner. His reaction is to be viewed in totality of his mental make-up and the extent and nature of fear gathered. 33. In view of the aforesaid proposition, the evidence of PW-12 Suresh cannot be held to be unreliable solely on the ground that he has not gone to rescue his father after seeking somebody is beating him by lathis and even not raised hue and cry for help. In our opinion, Suresh was 16 years' boy at the time of incident and due to fear, the circumstance and his mental make-up; first he went to the village and immediately narrated whole story to his mother and the villagers also and then the First Information report was lodged on the same day at the spot. So, this omission cannot be said to be material. 34. In such circumstances, we do not find any error in the findings given by the trial Court to the extent of involvement of accused-appellants in the crime. It is well settled that if the witness is related to the deceased, his evidence is to be accepted if found to be reliable and believable because he would, inter alia, be interested in ensuring that the real culprits are published. It is well settled that if the witness is related to the deceased, his evidence is to be accepted if found to be reliable and believable because he would, inter alia, be interested in ensuring that the real culprits are published. It is true that a transformation has indeed taken place in last 3-4 decades from the query-"why should an interested witness by believed?" to "why should such a witness be disbelieved as he is not likely to leave out the real culprits?" which reflects anxiety and utter helplessness of criminal Courts, as independent witnesses tend to turn hostile. 35. The only question requiring consideration is that whether the act of the accused-appellants amounts to murder, punishable under Section 302 Indian Penal Code or it constitutes an offence other than that. In this regard, it would be appropriate to consider the essential requirements to invoke Exception 4 of Section 300 I.P.C. 36. The issue now survives only with regard to nature of crime committed by the accused-appellants Madan and Jagdish. The learned trial Court held the accused-appellants guilty for the offence punishable under Section 302 Indian Penal Code, however, from the facts, circumstances and the evidence available on the record, it dies not reveal that the accused-appellants were intending to commit murder of Parana. 37. As per prosecution evidence, the occurrence took place suddenly. There was no pre-plan or pre-meditation. As per evidence on record and the facts contained in the First Information Report of this case, there was dispute of way (path) between the accused-appellants and deceased Parana. There occurred exchange of hot words between the accused-appellants and the deceased and they also indulged in quarrel and during the course of that quarrel, the accused- appellants suddenly inflicting lathi blow upon deceased. Thus, the act was done in heat of passion. 38. This also proves that the accused-appellants did not take any undue advantage of the situation or acted in a cruel manner, the accused-appellants inflicted a single blow on the head and did not repeat it on any other vital part of the body of deceased Panna. Upon consideration of aforesaid background facts in the light of the principles set out above, it is clear that to the present case Exception 4 of Section 300 Indian Penal Code would apply. 39. Upon consideration of aforesaid background facts in the light of the principles set out above, it is clear that to the present case Exception 4 of Section 300 Indian Penal Code would apply. 39. The accused-appellants-Madan and Jagdish must be having knowledge that the bodily injury caused by them my result in death of the victim Panna but they were not intending to kill Panna because they did not repeat the blow on vital part of his body. Therefore, we impute only this much intention for the accused-appellants that the injuries inflicted by them were likely to cause death and this act comes within the purview of Sections 304 Part-I I.P.C. 40. In view of the discussion made above, the appeal preferred by the accused-appellants Madan and Jagdish deserves to be accepted in part. 41. In the appeal preferred by the State, submission of learned Public Prosecutor is that PW-12 Suresh and PW-18 Ladu in quite definite terms stated in their Court-statements about the involvement of accused-respondent Mrs. Kanku in the crime in question and therefore, her acquittal by the trial Court is contrary to the evidence available on record. Hence, the learned Public Prosecutor prayed that the appeal may be allowed and the accused-respondent Mrs. Kanku may also be convicted and sentenced as per provisions of law and the impugned judgment dated 18.10.2005 may be quashed and set aside up to the extent of acquittal of accused-respondent Mrs. Kanku. 42. While opposing the State appeal, it further submitted by learned counsel for the accused-respondent Mrs. Kanku that the prosecution has not proved its case beyond doubt so as to establish that Mrs Kanku was also involved in the commission of this crime. He supported the judgment of the trial Court in respect of acquittal of accused-respondent Mrs Kanku while stating that said recovery of 'dantli' (Ex.29) was not established and proved by the prosecution evidence. As per evidence of PW-12 Suresh, 'dantli' was taken in possession by Police on the day of occurrence, so said recovery is highly doubtful. 43. We have minutely scanned through entire evidence on record and have also considered the submissions made by learned Public Prosecutor as well as learned counsel for,the accused-respondent Mrs. Kanku with a view to find out as to whether State appeal deserved to be granted to challenge the judgment impugned relating to accused-respondent Mr. Kanku. 44. 43. We have minutely scanned through entire evidence on record and have also considered the submissions made by learned Public Prosecutor as well as learned counsel for,the accused-respondent Mrs. Kanku with a view to find out as to whether State appeal deserved to be granted to challenge the judgment impugned relating to accused-respondent Mr. Kanku. 44. PW-12 Suresh and PW-18 Ladu deposed in before the trial Court that Mrs. Kanku was dhaving 'dantli' in her hand and inflicted one blow on the body of Parma (deceased) but as per medical evidence of PW-1 Dr. Ramesh Chandra Samariya and PW-2 Dr. Ram Gopal Goyal and the postmortem report Ex.P-1, there was no outer injury, no stab wound on the head of deceased Panna. If 'dantli' injury would have been caused on head of deceased Panna then he must have suffered outer stab wound injury. Suresh (PW-12) clearly deposed in his cross- examination that the 'dantli' was taken by Police on the day of the occurrence. It is also admitted fact that as per F.S.L. report (Ex.P-37) blood could not be determined on 'dantli'. In this way, evidence of recovery of 'dantli' is also doubtful. 45. By accepting whatever evidence was adduced by the prosecution, only reasonable inference that can be drawn is about presence of accused- respondent Mrs. Kanku but there is no convincing, legal and unimpeachable evidence on the basis of which participation of the accused-respondent Mrs. Kanku in the commission of the crime can be inferred. There is no evidence available on record to establish any common intention in commission of the crime. 46. On the basis of above and reasons and discussion, we are not inclined to interfere with the findings arrived at by the Court below in respect of accused- respondent Mrs. Kanku. Hence, acquittal of Mrs. Kanku by the trial Court by extending benefit of doubt is just and proper and hence, the State appeal is liable to be dismissed. 47. In the result, the appeal preferred by the accused-appellants-Madan S/o Sukhdev Jat and Jagdish S/o Ram Chandra Jat is party allowed. Kanku. Hence, acquittal of Mrs. Kanku by the trial Court by extending benefit of doubt is just and proper and hence, the State appeal is liable to be dismissed. 47. In the result, the appeal preferred by the accused-appellants-Madan S/o Sukhdev Jat and Jagdish S/o Ram Chandra Jat is party allowed. The impugned judgment dated 18.10.2005 passed by learned Additional Sessions Judge, Fast Track No. 1, Bhilwara in Sessions Case No. 2/2005 is set aside to the extent of conviction of the accused-appellants-Madan S/o Sukhdev Jat and Jagdish S/o Ram Chandra Jat, both residents of village-Salariya Kala, Police Station-Baneda, District-Bhilwara, for offence punishable under Section 302 Indian Penal Code and instead, they are convicted for offence under Section 304 Part-I I.P.C. 48. Consequently, sentence of life imprisonment with fine of Rs. 2000/-, in default of payment whereof to undergo two months' simple imprisonment, imposed upon the accused-appellants Madan and Jagdish in also modified and substituted with sentence of 10 years' rigorous imprisonment, also with fine of Rs. 1000/-, in default of payment whereof to undergo further simple imprisonment for one month. 49. The appeal filed by the State of Rajasthan is dismissed as being devoid of merit.Appeal partly allowed. *******